Friday, July 31, 2009

Updating the July 28th ILB entry in the case of Paula Brattain et al v. Richmond State Hospital, et al., the Office of Attorney General Zoeller has announced this afternoon:

Today, the Office of the Indiana Attorney General filed a notice of appeal and motion for stay of judgment in the case of Brattain v. Richmond State Hospital, the class-action lawsuit originally filed in 1993 over state-employee back pay.

The Attorney General’s filing comes three days after Judge John Hanley in Marion Superior Civil Court 11 entered a judgment against the State of Indiana in the amount of $42,442,788. The Attorney General’s motion asks the Court of Appeals to stay, or halt, the lower court’s order from taking place. Through the notice of appeal, the State is asking the Court of Appeals to reverse the lower court’s ruling and judgment.

“Frankly, I think the judge’s decision clearly spells out his disappointment that this case was not settled. This matter has taken far too long and truly should have been resolved back in 1993. Only now are we able to have the Court of Appeals address this matter based on the law,” Indiana Attorney General Greg Zoeller said.

Law - "Finding Accurate Law Text Online Nearly Impossible"

The ABA Standing Committee on the Law Library of Congress had a panel today at the ABA's annual meeting in Chicago. The title: "WHEN IS A LAW THE LAW? WHY AUTHENTICITY AND QUALITY MATTER." The advance description:

In a world that is linked together through increasingly numerous and complex transactions, access to reliable, quality texts of laws, regulations and court opinions is essential. There can be no substitute for the words of lawmakers and judges. Given the vast availability of online legal resources, how easy is it to determine what constitutes a reliable source of information? How does one know when the law is the law that it purports to be? And why does it matter? This panel will address these issues in part by describing an effort designed to provide access to the official and authentic legal texts from around the world known as the Global Legal Information Network (GLIN). The standards developed for this global legal information system are equally applicable to U.S. federal and state online primary legal resources. The results of a survey conducted by the American Association of Law Libraries finds that online primary legal resources for U.S. states currently cannot be considered trustworthy. Finally, the critical need for access to trustworthy legal access in the context of Rule of Law efforts, legislative strengthening programs, and legal/judicial reform projects will also be discussed.

This afternoon, Lynda Edwards of the ABA Journalreports on the panel's session:

It sounded easy. Federal Reserve Bank of New York’s counsel, Denley Chew, slapped down some $2 bills and challenged a room of lawyers and legal researchers with laptops and iPhones to find the authoritative text of the landmark Fugitive Slave Act online.

“Authoritative” was the catch. The money remained untouched.

Panelists declared that finding accurate text of a law—on government websites, LexisNexis, Westlaw—is almost impossible. The recession forced state and federal governments to post laws online rather than print them. But Mary Alice Baish, government relations director for the American Association of Law Libraries, says there is no national or international body that ensures those online postings are accurate or updated with amendments.

“I don’t think the problem will end until someone sues over because the decision was a $10 million case was based on an inaccurate version of a law,” Chew said. “Until that market solution, we’ll be dealing with cracks and fissures.”

The AALL conducted a 2007 survey that discovered that eight states and the District of Columbia refer lawyers and judges seeking the text of a law to official sources so different that the versions conflict. States that posted laws online only had no consistent way of maintaining older versions of an amended law or showing errors had been corrected.

“The history of law is disappearing; older versions of a law, amendments, show the thought process of a people and how they evolved,” observed ABA Legal Technology Research Center director Catherine Reach.

Global Legal Information Network at the Law Library of Congress provided the hopeful glimmer. Trusted officers of the court in dozens of jurisdictions, from the Congo to Canada, authenticate legal documents from their countries with an encrypted certificate. GLIN director Janice Hyde proudly said over 170,000 legal instruments have been authenticated.

With respect to Indiana, I have written about this problem frequently, and would refer those interested to:

Ind. Courts - "Texting, tweeting tempt jurors, frustrate judges"

Friday, an Indiana Supreme Court committee took up the issue of banning iPhones, cell phones, laptops, social network sites such as Twitter and Facebook, by jurors while they are deliberating a case.

The AP story begins:

INDIANAPOLIS -- Jurors are warned not to discuss trials with outsiders or investigate evidence on their own, but texting, Twitter and Google are making it increasingly hard for judges to enforce that rule.

An Indiana judicial panel is investigating what can be done about the problem, just a month after the Michigan Supreme Court issued a rule sharply restricting the use of electronic devices by jurors in that state's courts.

The Indiana Judicial Conference's jury committee assigned staff last week to draft a rule setting uniform limits on jurors' use of electronic devices during deliberations. The rule is scheduled to be presented in October.

Last month, the Indiana Supreme Court decided a civil case in which a juror accepted a phone call during deliberations. The verdict was allowed to stand, but not without a stern warning from Justice Brent Dickson.

Allowing jurors to keep cell phones or other devices, he wrote, is "fraught with significant potential problems impacting the fair administration of justice."

Worse problems have arisen elsewhere as jurors become increasingly wired. In Florida, a federal judge declared a mistrial in a drug trial in March after learning that nine jurors had done online research about the case.

Also in March, an Arkansas judge turned down a request for a new trial after a building materials company and its owner appealed a $12.6 million verdict against them, alleging that during the trial a juror posted Twitter messages that showed bias. And in England, a woman reportedly was dismissed from a jury after she asked people on Facebook how she should vote.

More from the story:

In Indiana, local judges set their own policies and there is no statewide consensus, said Hamilton Superior Court Judge Bill Hughes, chairman of the jury committee whose members are appointed by Chief Justice Randall Shepard. A majority of judges do have bailiffs take phones from jurors during deliberations, he said.

In the case decided by the Indiana Supreme Court, a juror got the bailiff to stand with her while she accepted a cell phone call about a class during deliberations.

"The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation," Dickson wrote in the June ruling.

Problems aren't limited to deliberations, or even the courtroom, experts say. Jurors are rarely sequestered, and curious jurors may not realize that doing an Internet search on a defendant's name or looking up a crime scene on Mapquest on their home computer could violate court rules about seeking evidence independently.

"Even in the course of the trial, if jurors access different things on the Internet they can potentially base their decision on something other than what was presented at trial," said Joel Schumm, a professor at the Indiana University School of Law in Indianapolis.

"I think there has to be a warning to the jurors that they not do any outside research, because people are curious," he said.

The Justice Dickson opinion referenced is the case of Henri v. Curto, June 17th and discussed in this ILB entry.

Ind. Courts -Verdict in road-rage shooting trial in Clark County

A Clark County jury on Friday found Yalanda Parrish guilty on one count of class B felony aggravated battery and one count of class C felony criminal recklessness stemming from what police say was a July 2008 road rage incident which left a man shot in the chest.

Parrish’s sentencing has been set for Aug. 18. She faces six to 20 years in prison.

The jury, comprised of eight women and four men, deliberated for less than three hours.

Parrish, 39, of Jeffersonville, shot Wesley Mosier Jr., 54, of Corydon, on 10th Street at the intersection with Allison Lane. She claimed she shot Mosier in self-defense after he got off the motorcycle he was riding and approached the window of her SUV.

John Schwartz of the NY Times has an article today about DC v. Heller and federal Circuit Court decisions on whether the 2nd amendment applies to the states. It begins:

In a setback for supporters of gun rights, a federal appeals court in San Francisco has set aside a major ruling by three of its own justices that made it easier to challenge local gun restrictions.

Without explanation, the United States Court of Appeals for the Ninth Circuit, in San Francisco, on Wednesday ordered a hearing before 11 judges on an earlier decision by a three-judge panel that applied the Second Amendment right to own guns to state and local laws.

In extending the Second Amendment to the states, the Ninth Circuit stood alone among the federal circuit courts of appeals that have taken on the issue. Two circuits declined to apply the amendment to the states. [ILB - Those would be the 7th and 2nd] That conflict between the circuits was widely seen as inviting quick review by the Supreme Court, a possibility that could be reduced by the Ninth Circuit’s reversal.

The California case, Nordyke v. King, involves an ordinance banning firearms at a public fairground. In a unanimous opinion in April, the three-judge panel upheld the ordinance but said Second Amendment protections applied, citing a landmark 2008 decision by the Supreme Court. In that case, District of Columbia v. Heller, the justices found for the first time that the Second Amendment protects the rights of individuals to keep and bear arms for personal use. That decision did not apply the Second Amendment to state and local laws.

Ind. Decisions - One today from 7th Circuit

After an extensive investigation
of a large drug distribution organization, the Government
charged Jeffery Dean and several other individuals
with conspiring to distribute and to possess with intent
to distribute methamphetamine. A jury found Mr. Dean
guilty of the conspiracy, and the district court sentenced
him to 156 months’ imprisonment. Mr. Dean now appeals.
He claims that the evidence presented at trial was insufficient to support the jury’s verdict, resulting in a fatal
variance between the crime charged and the offense
proved at trial. He also challenges the court’s determination
of his base offense level and its application of a two-level
enhancement for obstruction of justice. For the
reasons set forth below, we affirm Mr. Dean’s conviction,
vacate his sentence and remand his case for
resentencing in accordance with this opinion. * * *

In sum, we hold that the evidence presented at trial was
sufficient to support the jury’s verdict. Furthermore, we
conclude that the district court did not abuse its discretion
by applying an obstruction of justice enhancement.
Nevertheless, we must vacate Mr. Dean’s sentence and
remand for further proceedings so that the district court
may determine the quantity of methamphetamine that
was reasonably foreseeable to Mr. Dean.

Appellant Babyback's International, Inc. (“Babyback's”) appeals the trial court's order granting Appellees', The Coca-Cola Enterprises, Inc. (“Coke Enterprises”) and Coca-Cola Company (“COKE”), motions for summary judgment. Babyback's claims that the trial court erroneously granted summary judgment in favor of Coke Enterprises because constructive fraud excused the parties' non-compliance with the writing requirement of the Statute of Frauds and that in turn, the trial court erroneously granted summary judgment in favor of COKE because a valid contract existed between Babyback's and Coke Enterprises. * * *

Babyback's contends that the trial court erroneously granted summary judgment in favor of Coke Enterprises. Specifically, Babyback's alleges that the trial court's order is erroneous because Coke Enterprises engaged in constructive fraud which in turn excused the parties' oral multi-year national agreement from the Statute of Frauds requirement that the agreement be in writing. Initially, we observe that although Babyback's dedicated a notable portion of its appellate brief to establishing that constructive fraud may, under some circumstances, excuse non-compliance with the writing requirement of the Statute of Frauds, Babyback's has failed to adequately demonstrate that Coke Enterprises engaged in constructive fraud. Nevertheless, we will review whether, as a matter of law, Coke Enterprises engaged in constructive fraud and, if so, whether such fraud would exclude the parties' agreement from the writing requirement of the Statute of Frauds. * * *

[I]nsomuch as the only possible basis for Coke Enterprises's duty to Babyback is the alleged contract, we can only conclude that Babyback's has failed, as a matter of law, to establish that it is entitled to relief on its constructive fraud claim. Consequently, we conclude that the trial court properly entered summary judgment in Coke Enterprises's favor on this claim.

Babyback's also contends that the trial court erred in granting summary judgment in favor of COKE. Specifically, Babyback's argues that, if the parties' noncompliance with the writing requirement of the Statute of Frauds was excused by constructive fraud, then summary judgment was inappropriate on its claim that COKE tortiously interfered with Babyback's contract with Coke Enterprises. * * *

It is undisputed that Babyback's claim against COKE for tortious interference can be successful only if a valid and enforceable contract exists between Babyback's and Coke Enterprises. In fact, Babyback's explicitly acknowledges that its tortious interference claim against COKE is viable “only if constructive fraud can take the National Contract out of the Statute of Frauds.” Therefore, having concluded above that there was no valid contract because, as a matter of law, it was clearly unreasonable for Babyback's to take any actions in reliance upon its belief that Coke Enterprises had promised to perform the alleged national agreement, we conclude that the trial court did not err in determining that COKE was entitled to summary judgment.

A Louisville attorney charged with impersonating a police officer after pulling over four teens on allegations of drunk driving in November 2007 has pleaded guilty and agreed to surrender her law license and seek mental health treatment.

Melissa G. Ash, who was facing felony charges of impersonating a police officer and wanton endangerment, agreed Thursday to plead guilty to unlawful imprisonment and wanton endangerment, both misdemeanors.

Jefferson Circuit Judge Geoffrey Morris sentenced Ash to 12 months in jail, probated for two years as long as Ash follows several conditions: She must notify the Kentucky Bar Association by Friday of her conviction and surrender her bar license within the next six months; seek mental health treatment; pay $574 in restitution; and agree not to ask for the conviction to be expunged. * * *

This wasn't the first time Ash, 36, had faced such a charge.

She was convicted of three counts of impersonating an officer in 2001 for pretending to be an FBI agent and an alcohol control officer and badging her way into bars on Baxter Avenue, where she got free drinks and threw out customers for various reasons, according to court records.

Updating this ILB entry from July 29th, Matt Thacker of the Jeffersonville News & Tribune has a story headed: "Prosecution rests in Parrish trial; defense calls no witnesses before Clark County Circuit Court jury: Jury to begin deliberations Friday after closing arguments."

Ind. Law - "Ind. lawmakers to consider redistricting changes"

Here is what the Indiana Constitution, Article 4, Sec. 5, provides:

Section 5. The General Assembly elected during the year in which a federal decennial census is taken shall fix by law the number of Senators and Representatives and apportion them among districts according to the number of inhabitants in each district, as revealed by that federal decennial census. The territory in each district shall be contiguous.(History: As amended March 14, 1881; November 6, 1984).

Ind. Decisions - "State Government Can't Sue Itself, Court Rules"

The Court was the 7th Circuit, and the opinion reported on by Avery Fellow in this story from Courthouse News Service is Indiana Protection and Advocacy Services v. Indiana FSSA, summarized here by the ILB on July 28th. Some quotes:

(CN) - An Indiana agency that protects the interests of patients with developmental disabilities can't sue the state's social services administration to obtain the medical records of a mentally ill patient who died, the 7th Circuit ruled.

A branch of state government cannot draw on federal civil rights laws to sue another branch of government, the Chicago-based appeals court decided. "Yet that is exactly what Advocacy Services is trying to do," Chief Judge Easterbrook wrote. "This suit might as well be captioned Indiana v. Indiana."

Indiana Protection and Advocacy Services sued the LaRue Carter Memorial Hospital and the Indiana Family and Social Services Administration, along with various state officials, over the state-run hospital's refusal to turn over medical records of a deceased patient who was mentally ill.

Advocacy Services, which oversees federal grant money for people with developmental disabilities, was looking for evidence of abuse that could be used to spur medical improvements.

The district court ruled that the records must be released to the agency, as the patient was an adult at the time of death. But the hospital appealed, saying the patient's parents would have to consent to record release. In addition, the hospital said, the records were protected under state privacy laws.

Because Advocacy Services is a public agency rather than a private corporation or foundation, the agency has to sue in state court, the 7th Circuit ruled.

The suit is also "blocked by the 11th Amendment," Easterbrook added. Though the 11th Amendment establishes that federal law trumps states' sovereign immunity, Easterbrook said the Supreme Court has never used the amendment to "let one arm of a state sue another."

"A state's decision to accept federal funds is not enough, standing alone, to waive the state's immunity from suit," Easterbrook wrote. "Intramural disputes among governmental bodies can and should be worked out in political ways - or through the state courts."

The federal appeals court dismissed the case for lack of jurisdiction and said that other issues, such as Advocacy Services' right to request patient information in the first place, will have to be dealt with later.

The court added that Advocacy Services cannot go after state officials for ignoring federal statutes in this case, because the named individuals are state employees, not officeholders.

Ind. Gov't. - Still more on: Southern Indiana town may file for bankruptcy protection

Georgetown Town Council President Billy Stewart said Thursday the town's government is fiscally solvent, paying its bills on time, and has no plans now to declare bankruptcy.

The council in June passed a resolution meant to make it possible for the town to file for federal bankruptcy protection. But Stewart said that would be a last resort in case the town is ordered to pay more than it can afford because of problems with a still-pending sewer plant project.

“There are no judgments against Georgetown right now,” Stewart told The Courier-Journal in an interview Thursday, responding to a story earlier this week about the bankruptcy resolution.

He said some contractors and other firms have been hesitant to do business with the town, fearing they might not get paid. Some residents also have expressed concern, he said. * * *

But in a worst-cases scenario, he said, if the town couldn't negotiate lower amounts, lost any available appeals, was unable to sell bonds to pay the debt and couldn't raise the revenue from taxes or other sources, it might have to consider bankruptcy.

Such a decision wouldn't have to be made for several years, he said.

Because of a legal dispute about whether an Indiana community has the right to declare bankruptcy, however, Stewart said the council wanted to act now on the resolution before such a filing might become necessary.

Ind. Courts - Still more on "He was trying to put her over that railing"

LAFAYETTE, Ind (WLFI) - A Lafayette man is on trial accused of trying to throw an attorney over the railing from the fourth floor of the Tippecanoe County Courthouse.

51-year-old Russell Timmons is charged with Attempted Murder, Battery, and Confinement. The charges stem from an incident in June 2007.

The jury watched video from courthouse security cameras. Witnesses said Timmons tried to push Fort Wayne attorney Linda Polley over the atrium's railing. Polley represented the insurance company Timmons was taking to court.

In the video viewable to the upper left, Polely, Timmons, as well as some other individuals are walking down the hall toward a railing overlooking a three-story drop. Timmons can be seen rushing Polley and, after she does not go over the railing in the initial attack, dragging Polley along the ground back toward the railing until bystanders came forward and stopped him.

Thursday, July 30, 2009

Ind. Decisions - Supreme Court decides one today

Steve Hernandez and the State both appeal determinations made by the trial court with respect to Hernandez’s petition for post-conviction relief regarding convictions and sentences for two murders committed in 1975. Because these crimes were committed prior to the 1977 effective date of our state’s current criminal sentencing code, resolution of the issues in this case requires the application of certain principles and terminology infrequently used today. On the most consequential of these, we hold that Indiana law in effect at the time of Hernandez’s crimes dictated that he was not eligible to be considered for parole absent executive clemency. * * *

It was, of course, incorrect [in Johnson v. Dobeski] to refer to a life sentence as “indeterminate.” See Brown, 322 N.E.2d at 711 (“a life sentence is neither determinate nor indeterminate.”). And, given White and our analysis supra, it is now clear that a person serving a life sentence imposed at the time of the crime committed by the prisoner in Johnston was not eligible for consideration for parole. To the extent that Johnston held that a life sentence was indeterminate and that a prisoner serving a life sentence was eligible for consideration for parole, it is overruled.

Given that, what is the explanation for the Parole Board data showing hundreds of per-sons under life sentences receiving parole? The answer to that question is that an intermediate step had occurred – a step that was not discussed or disclosed in the meeting minutes of the Pa-role Board. Under Indiana law at the time, the Parole Board also functioned as the Indiana Cle-mency Commission. I.C. § 11-1-1-41 (1971). Prisoners not eligible for parole sought clemency, or reductions in their sentences, by filing petitions with the Clemency Commission. 1933 Ind. Acts 721, Pub. L. No. 117, § 4 (codified at I.C. § 11-7-4-2 (1971)). When the Clemency Com-mission considered such petitions to be meritorious, the Commission forwarded them to the Governor, who had the authority to grant or deny them.

In the case before us today, the State has provided us with records showing that during the period in question, the members of the Parole Board – but sitting as the Clemency Commis-sion – regularly recommended to the Governor the requests of persons under life sentences for reductions in their sentences from life to a term of years. And the Governor regularly approved the Clemency Commission’s recommendation. No longer being under a life sentence, these prisoners had become eligible for parole and the Parole Board granted it.

This intervening step of executive clemency, which was not apparent to us when we decided Johnston, does not affect our attitude about the outcome of Johnston. The reason for examining the Parole Board records in the first place was to see whether life sentences imposed at the time were done so under a “sentencing regime that expressly provided for later review” and whether the sentence to which the prisoner and county prosecutor agreed exceeded the periods of time with respect to which the “sentencing system regularly authorized parole from life sentences.” Johnston, 739 N.E.2d at 125. The fact that there was an intervening step in the sentencing regime of which we were not aware, does not change the broader conclusion that the statutes in effect at the time could have operated to provide that the prisoner’s original sentence would be modified to one equal to that provided in his agreement with the prosecutor. We therefore reaffirm our holding in Johnston that the agreement between the prisoner and the county prosecutor was valid.

Our discussion of the Johnston case has direct implications for Hernandez. Although we hold that he is not eligible to seek parole, he is eligible to seek clemency in the same manner that so many individuals successfully did during the years in question. From what we have seen in the record, he warrants consideration. Should he be successful in having his sentences commuted to a term of years, he would then be eligible to seek parole.

The decision of the post-conviction court denying in part Hernandez’s petition for post-conviction relief is affirmed and its decision granting in part is reversed. This matter is remanded to the post-conviction court with instructions to enter judgment in favor of the State.

The agency responsible for monitoring local criminals on home detention has been breaking state law in how it administers the program – allowing an unknown number of criminals to be released from their sentences early.

Allen County Community Corrections, which handles Re-Entry Court, home detention and electronic monitoring, has been allowing misdemeanants and felons to earn two days of credit for every day they serve on home detention with good behavior.

It’s the same deal offered by the Indiana Department of Correction. But it is against state law for convicts to have the same benefit on home detention.

“It looks like we screwed up,” said Allen Superior Court Judge John Surbeck, the judicial head of the program and chair of Allen County Community Corrections’ advisory board.

The problem came to light last week during a routine sentencing for a low-level felony theft case. Allen Superior Court Judge Fran Gull sentenced Cassandra Ward to three years in prison because home detention doesn’t accept anyone with a sentence longer than 1 1/2 years.

But Community Corrections staff spoke up during the hearing, saying that the 1 1/2 -year cap would be met by the three-year sentence because of the good-time credit.

A shocked Gull questioned the practice, shaking her head as she closed the file and promised to look into the matter. * * *

Allen County Prosecutor Karen Richards was also unaware of the practice until she heard about it Friday.

“The statute clearly says you don’t get the credit on home detention as you do when you are serving an executed sentence in the Department of Correction,” Richards said.

If convicts are serving their sentences in the relative comfort of their homes, then they should not be entitled to the same credit as a person serving a sentence behind bars, Richards said.

No court official was able to provide figures on how many people over the years received this illegal credit for good behavior.

According to the most recent report for the Community Corrections program, covering the 2007-08 fiscal year, nearly 1,140 felons were screened for the program, with 417 accepted. More than 1,350 misdemeanants were also screened, with 525 accepted. * * *

Surbeck said that while it is obvious that serving time in prison is less pleasant than home detention, being confined to one’s home and tethered electronically is still restrictive.

“The bottom line is that we made a mistake,” Surbeck said. “We’re going to have to deal with it and figure out how we’re going to deal with it.”

Ind. Decisions - Court of Appeals issues 2 today (and 16 NFP)

In this interlocutory appeal, the Trustees of Indiana University (the “University”) appeal the trial court's denial of its motion for summary judgment regarding a complaint filed by H. Daniel Cohen. The University raises several issues, which we revise and restate as whether the trial court erred when it denied the University's motion for summary judgment. * * *

Because we conclude that Paragraph 3 of the Agreement was clear and unambiguous in that it permitted the University to terminate Cohen's employment for his violation of the University's Code of Ethics as set forth in the Indiana University Academic Handbook, the University did not breach the Agreement by dismissing Cohen on that basis and the University was entitled to judgment as a matter of law. * * *

For the foregoing reasons, we reverse the trial court's denial of the University's motion for summary judgment and remand with instructions to enter summary judgment in favor of the University on Cohen's Complaint.

Based on the foregoing, we conclude that (1) the trial court did not abuse its discretion by refusing to instruct the jury on residential entry as a lesser-included offense of burglary, (2) the trial court's instruction on the “breaking” element of burglary did not improperly emphasize one particular evidentiary fact, (3) VanWanzeele waived her objection to the trial court's final instruction on the concept of reasonable doubt when she failed to object when the same instruction was given as a preliminary instruction, (4) the trial court did not abuse its discretion by determining that VanWanzeele's previous encounter with Captain Sawdon was irrelevant to whether Captain Sawdon was biased against VanWanzeele in this case, (5) VanWanzeele has failed to establish that she is entitled to reversal of her conviction based upon the prosecuting attorney's reference to her criminal conversion conviction as a conviction for “stealing,” and (6) VanWanzeele's sixteen-year sentence is not inappropriate. Affirmed.

NFP civil opinions today (2):

Wayne J. Theising v. Deanne Theising (NFP) - "Appellant-petitioner Wayne J. Theising appeals the trial court's order dissolving the marriage of Wayne and appellee-respondent Deanne Theising. Wayne argues that the trial court erred by awarding the value of the equity of the marital residence at the time of the marriage to Wayne but dividing the remaining equity equally between Wayne and Deanne. Finding no error, we affirm."

The Tax Court decision July 24th in the case of Oaken Bucket Partners, LLC v. Hamilton County Property Tax Assessment Board of Appeals and Hamilton County Assessor (ILB summary here) is the focus of a story today by Carrie Ritchie in the Indianapolis Star. Some quotes:

The Indiana Tax Court has issued a decision that could benefit nonprofits across the state.

The tax court ruled that landlords who rent property to nonprofits can qualify for property-tax exemptions. Previously, properties leased by nonprofits were not granted exemptions.

The effects could be widespread, according to two experts on tax law, but they had no information on how many nonprofits could be affected.

Nonprofits that rent ultimately will benefit because most leases require the nonprofits -- not the landlords -- to pay the property taxes, the experts say.

The ruling could cut some nonprofits a financial break, but limit the government's property tax revenues for public services.

"As more people may qualify or seek these exemptions, it puts more property tax revenue at risk," said Marc Hetzner, a partner at Krieg Devault law firm. * * *

In 2004, Oaken Bucket petitioned the county for a property tax exemption on the portion of the building it rents to Heartland Church, but the county denied the request because it said Oaken Bucket leased the property for a profit. The Indiana Board of Tax Review sided with the county, and the case went to the state's tax court.

The court ruled in Oaken Bucket's favor because the company rents space to the church at a low rate, about half of the usual market price. The court said the low rate shows the company is supporting the church's charitable and religious purposes.

This ruling could encourage other landlords who rent to nonprofits to seek a property tax exemption, said Hetzner, a tax law specialist.

Based on his analysis of the ruling, Hetzner said future exemptions will be granted on a case-by-case basis, but landlords would need to prove participation in the charitable or religious purpose of their nonprofit tenant, such as by offering lower rent.

Ind. Courts - Still more on: Managing the electronic communication revolution in the Indiana courtroom

Updating this ILB entry from July 25th, it turns out the ILB completely missed relevant details/dicta from one recent decision of our Supreme Court, Henri v. Curto, an opinion by Justice Dickson issued June 17th (and briefly summarized by the ILB here on June 17th).

In Curto, during the deliberations, one of the jurors received a phone call and took it outside the jury room, accompanied by the bailiff. Here are some quotes from the opinion:

Ms. Henri presented her claim of error due to the juror's cell phone use in her motion to correct error. It was denied by the trial court, which concluded that "[n]othing about these events comprise[s] misconduct in any form." On appeal, Ms. Henri has not established that the alleged receipt of a cell phone call with the apparent approval of the bailiff constituted misconduct, and has shown neither gross misconduct nor probable harm. Reversal and a new trial are not warranted on this issue.

Ind. Decisions - Two cases granted transfer July 29-30th

The Clerk's transfer list should be available sometime Friday or perhaps Monday. Meanwhile, the ILB has received notice that transfer was granted July 29th and 30th in two cases:

Gina Johnson v. Robert Johnson - 46A04-0810-CV-570 - from the ILB's March 4th summary of the COA opinion: "More importantly, however, the parties failed to specifically address Wife’s lien or its priority, if any, over other liens in the Settlement Agreement. In fact, the Settlement Agreement did not even recognize that Wife would have a judgment lien. Such an omission occurred despite both parties having knowledge of the line of credit; its necessity for maintaining Sunset Dairy’s operations; and representation of both parties by counsel."

Kroger Co. v. Lu Ann Plonski - 49A02-0807-CV-610 - Here is a link to the COA's April 28th opinion in Kroger's interlocutory appeal of the court's denial of its motion for summary judgment. Plonski was attached outside the Korger entrance. "Kroger argued that it did not have a duty to protect Plonski from a criminal act of a third party who was not a guest or patron of the store, that, even if it had a duty to Plonski, it did not breach that duty, and that it was not the proximate cause of Plonski's injuries."

Courts - Still more on: Open meetings law may be unconstitutional, 5th Circuit rules

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states joined Abbott in asking for a rehearing by all of the 5th Circuit's judges.

"Subjecting open meetings laws to 'the most stringent review' of strict scrutiny ... is wrong as a matter of precedent and logic," Louisiana Attorney General James "Buddy" Caldwell wrote. "But it would also practically cripple the operation of those laws."

The list of attorneys general who signed onto Caldwell's brief includes those for Alabama, Arizona, Colorado, Florida, Idaho, Indiana, Illinois, Michigan, Mississippi, Montana, Nebraska, New Mexico, Nevada, Ohio, South Dakota and Virginia.

NEW ORLEANS — A New Orleans-based federal appeals court has agreed to review a ruling that several state attorneys general warned could cripple their open meetings laws.

A ruling in April by a three-judge panel from the 5th U.S. Circuit Court of Appeals revived a lawsuit city council members in Alpine, Texas, filed after two members were charged with violating the state's open meetings law. The council members allegedly violated the law by discussing a city project in an exchange of e-mails.

After the ruling, attorneys general for Texas, Louisiana and more than a dozen other states asked for the full 5th Circuit to reconsider the case. Lawyers for the Alpine council members also asked for a rehearing. The court announced this week that a majority of its judges voted to rehear the case.

A state grand jury in Texas indicted two of Alpine's five city council members after they circulated e-mails in 2004 about the hiring of engineers for a city water project before a public hearing. A state judge later dismissed the criminal charges.

In 2005, one of the council members who had been charged — and another who had not — sued to block enforcement of the Texas open meetings law.

The 5th Circuit panel said U.S. District Judge Robert Junell incorrectly ruled that the First Amendment "affords absolutely no protection to speech by elected officials made pursuant to their official duties."

The panel directed Junell to decide whether the Texas Open Meetings Act passes the "strict-scrutiny" test under the First Amendment and "make the state carry its burden of proving that the statute pursues a compelling interest which the law is narrowly tailored to further."

Texas Attorney General Greg Abbott's office has warned that the panel's ruling could serve as a precedent for striking down many open meetings laws. The list of attorneys general seeking a rehearing also includes those for Alabama, Arizona, Colorado, Florida, Idaho, Indiana, Illinois, Louisiana, Michigan, Mississippi, Montana, Nebraska, New Mexico, Nevada, Ohio, South Dakota and Virginia.

Rod Ponton III, a lawyer for the Alpine council members who sued, said his clients are asking the full 5th Circuit to declare that the Texas open meetings law is unconstitutional.

"We've always said we want open government and don't want backroom deals, but this law went too far because it keeps public officials from talking about public issues except at public meetings," Ponton said Wednesday.

This is one of the cases included on the list labeled "AG Zoeller Amicus Briefs 2009" that the ILB posted via this entry on July 28th. It is described on the list as: Avinash Rangra et al v. Brown, DA; Abbott, TX AG, 06-51587, US 5th Cir - LA. It is the only non-SCOTUS brief on the list. From the case summary:

Rangra would subject Texas, Louisiana, and Mississippi Open Meetings Laws to strict scrutiny as content-based speech regulations under the First Amendment. It would also be the first-of-its-kind precedent for subjecting any other State’s open meetings law to that rigorous constitutional justification, contrary to the decisions of at least three state supreme courts. Thus, it is in the States’ interests to urge the Fifth Circuit to rehear the case and correct the panel’s erroneous decision.

COURT ORDER that the motion for Reporters Committee for Freedom of the Press for leave to file amicus brief in support of appellees' petition for rehearing en banc is MOOT [6282156-2], the motion on behalf of the States of Louisiana, Alabama, Arizona, Colorado, Florida, Idaho, Illinois, Indiana, Michigan, Mississippi, Montana, Nebraska, New Mexico, North Dakota, Ohio, South Dakota, and Virginia for leave to file amicus brief in support of appellees' petition for rehearing en banc is moot [6282269-2], the motion of Freedom of Information Foundation of Texas, Inc.,for leave to file amicus brief in support of appellees' petition for rehearing en banc is MOOT [6282327-2], the motionof The Texas Municipal League, The Texas City Attorneys Association, The Illinois Municipal League, The South Dakota Municipal League, The National League of Cities, and The International Municipal Lawyers Association for leave to file amicus brief in support of appellants' petition for rehearing en banc is MOOT. [6283057-2] Judge(s): JLD. [06-51587] (MCS)

Wednesday, July 29, 2009

Courts - "The Senate has not confirmed any nominees to the federal judiciary this year"

The chairman of the Senate Judiciary Committee accused Republicans today of stalling the confirmation of nominees for top legal jobs.

Sen. Patrick Leahy (D-Vt.), speaking at the start of a committee meeting, expressed frustration that the Senate has not confirmed any nominees to the federal judiciary this year. In all, he said, there are 17 nominations that the Judiciary Committee has sent to the full Senate and that are still awaiting confirmation.

"The Senate has to do better," Leahy said. "There's actually no excuse for not having moved yet."

Among those cooling their heels in the Senate are four nominees for top Justice Department jobs, the nominee to chair the U.S. Sentencing Commission, and nominees for the U.S. Courts of Appeal for the 2nd, 4th, and 7th Circuits. Harvard Law Professor Cass Sunstein, nominated for administrator of the White House Office of Information and Regulatory Affairs, is also awaiting a vote.

The list, of course, includes Hoosiers Dawn Johnsen and David Hamilton.

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

Wife first argues that the trial court failed again on remand to properly include all marital assets, namely, the Dora Road property and the Chevrolet truck, in the marital pot. In our original opinion, we instructed the trial court “to put all of the marital property, including property owned by Husband and Wife before the marriage, into the marital pot before determining the appropriate division.” In its order on remand, the trial court stated that it included all of the marital assets “in the marital pot and considered same in its distribution.” Then, however, the trial court, citing the short duration of the marriage [ILB - 3.5 yrs] , stated that it was returning to each party all property that each owned prior to the marriage “and thereafter equitably dividing the remaining Assets and Debts on a substantially equal basis.” Wife contends that simply setting off such property in such a perfunctory manner “constitutes the type of systematic exclusion of assets” that we held to be an abuse of discretion in our original opinion. We agree. Purporting to put all marital assets into the marital pot but then removing certain assets before dividing the rest is equivalent to excluding those assets from the pot in the first place. * * *

Wife also argues that the trial court, having failed to include all marital assets in the marital pot, further abused its discretion by failing to adequately consider all of the factors listed in Indiana Code section 31-15-7-5. Again, we conclude that Wife has established prima facie error in this regard. * * *

The above discussion reveals prima facie error in the trial court’s division of the marital property. However, in the interest of judicial economy, we decline to order further proceedings before the trial court. Instead, we remand with instructions to the trial court to eliminate the equalization payment from Wife to Husband from its dissolution decree, which we conclude will result in a just and reasonable division of the marital property. * * *

Based on the foregoing, we conclude that Wife has again established prima facie error in the trial court’s division of the marital property. We remand to the trial court with instructions to eliminate the equalization payment from Wife to Husband. However, we affirm the trial court’s denial of Wife’s petition for an award of attorney fees arising from her first appeal in this case.

Although we acknowledge that Small Claims Rule 8(A) indicates that the court is not bound by the Rules of Trial Procedure, our supreme court nevertheless stated in Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind. 1995), that “the Rules of Trial Procedure apply in small claims court unless the particular rule in question is inconsistent with something in the small claims rules.” Having reviewed the Small Claims Rules, we did not discover any specific rules that would preclude the application of Indiana Trial Rules 42(A) and 43(D).

In the instant case, the small claims court clearly ordered a joint hearing of both Elrod’s complaint and Brooks’ counterclaim. While Elrod carried the burden of presenting evidence on his complaint, Brooks carried a similar burden with respect to his counterclaim. Thus, after producing the evidence which sustains the claim—be it the original complaint or a counterclaim—the adverse party may produce evidence contesting this claim.

Recognizing the great amount of discretion a small claims court has in the orderly conduct of the proceedings before it, we are nevertheless troubled by the court’s outright refusal to give Elrod an opportunity to introduce evidence in an attempt to refute Brooks’ counterclaim. Even if it was the small claims court’s intention that Elrod should have presented all his evidence which supported his claim and contested Brooks’ counterclaim at the same time, the court never shared this intent with the parties. Regardless, it would still be dubious for Elrod to have to defend against a claim before hearing the evidence in support of it. Although informality is the key in small claims proceedings, it should not come at the cost of fundamental rights of the parties. Therefore, we conclude that the small claims court abused its discretion by denying Elrod’s right to present evidence contesting Brooks’ counterclaim. * * *

The sole question before us is whether Judge Zore had the authority to set aside his earlier order of summary judgment in favor of Appellees on the same day that he recused himself. Appellants contend that Judge Zore’s order is invalid, as it was issued on the same day as his recusal. Appellees contend that Indiana law does not prevent a judge from issuing substantive orders on a case, even after he had decided that he must recuse himself, unless actual prejudice or bias has been shown.

The question here is not whether the trial court’s withdrawal of grant of summary judgment in favor of Appellees amounts to an abuse of discretion, but, rather, whether Judge Zore had the authority to rule on the matter at all, which is a question of law. Ehrlich v. Thayer, 686 N.E.2d 916, 917 (Ind. Ct. App. 1997). A judge may not render a substantive ruling in a case where a recusal was issued simultaneously. Thacker v. State, 563 N.E.2d 1307, 1309 (Ind. Ct. App. 1990). Where a judge has recused himself, he can no longer issue any substantive rulings.

Here, even though the orders in question were issued on the same day, the record does not reflect whether the recusal decision preceded the order to set aside the summary judgment or followed it by, perhaps, several hours. We cannot assume that orders issued the same day are necessarily issued at the same time. Because there is nothing in the record indicating that Judge Zore issued the order to set aside the summary judgment after deciding to recuse himself, we must presume that he did not. “It is a cardinal rule of appellate review that the appellant bears the burden of showing reversible error by the record, as all presumptions are in favor of the trial court’s judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct. App. 2006). Under the circumstances, we must affirm the judgment of the trial court.

Ind. Courts - Still more on "Road-rage shooting trial begins this week in Clark County"

Updating this ILB entry from yesterday, it looks like the trial will get plenty of coverage.

"Road rage jury hears taped statement from defendant" is the heading of today's story by Chris Quay of the Louisville Courier Journal, accompanied by a video of attorneys discussing the upcoming trial, and a video of the 911 call "made by the woman who said she shot a motorcyclist."

Environment - More on "Memo details TVA editing of response to ash spill"

Updating this ILB entry from Jan. 23rd, remarking on the PR changes in a TVA memo:

The massive coal ash spill at a Tennessee Valley Authority power plant last month wasn't so much "catastrophic" as it was a "sudden, accidental release."

Today the Washington Post'sFederal Eye column by Ed O'Keefe has a report that begins:

Problems continue for the Tennessee Valley Authority, the federally-backed corporation that provides services to seven southern states. At issue is the behavior of company officials after last December's big coal ash spill at the Kingston Fossil Plant:

"The utility's independent watchdog found TVA management has not accepted responsibility for decisions leading to the catastrophe. Instead, the report found, officials limited the scope of an investigation into the cause of the disaster in an apparent effort to shore up its legal defense in lawsuits," reports the Knoxville News Sentinel.

The story includes some useful links.

[More]Here is a link to the 111-page inspection report, thanks to the LCJ.

Ind. Decisions - "State Supreme Court rules city utilities can be held liable"

The July 24th transfer list included among the transfer denials the case of City of Bloomington Utilities Dept. v. Misty Walter, Micky Day, et al. Here is the ILB summary of the April 15th COA opinion.

Today Brady Gillihan reports in this story ($$) in the Bloomington Herald-Times:

The Indiana Supreme Court has ruled the City of Bloomington Utilities can be held liable in a case where 300 gallons of sewage backed up into an apartment in 2005.

According to court documents, a mass of tree roots and grease inside a sewer pipe are suspected to have clogged the pipe, causing backflow into the Hillside Drive apartment owned by Hernan and Leslie Cadavid.

One tenant, Misty Walter, told the H-T in 2006 that the flood cost her around $30,000 in lost furniture, clothing, music and wages, and that she and fellow tenant Micky Day were homeless for a month following the flood. * * *

The original complaint was filed on March 21, 2007, with Bloomington Utilities asking for a summary judgment in its favor. The utility held that the decisions it made as a government entity were immune from liability. But the utility was denied.

The appeals court found that the utility’s pipe cleaning procedures were actions in which employees would “exercise professional judgment,” and the utility could be held liable. * * *

Attorneys John Shean and Mike Scarton of Shean Law Offices, representing the homeowners and tenants, called the Supreme Court’s unanimous decision a “landmark case.”

“It confirms the fact that a government-run utility should be held liable to the same standards as private citizens,” Shean wrote in release.

In a telephone interview, Scarton said the next step is either a trial or a settlement. “Either way, this gives our clients the right to proceed.”

Law - "Mortgage Servicers Are Under Pressure to Modify More Loans"

Frustrated with the slow progress of President Barack Obama's housing-rescue plan, administration officials met with mortgage executives Tuesday and pressed them to pick up the pace of loan modifications for troubled borrowers. * * *

Officials from 25 mortgage-servicing companies, including Bank of America Corp., Citigroup Inc., J.P. Morgan Chase & Co. and Wells Fargo & Co., were summoned to the meeting to discuss ways to improve the program, which was announced with fanfare in February. The program provides financial incentives for mortgage servicers and investors to reduce loan payments to affordable levels. * * *

The plan is one of the cornerstones of the Obama administration's effort to stabilize the housing market. But months after it was introduced, borrowers and housing counselors are complaining of long waits for help, lost paperwork and mortgage-company employees who don't understand the program. * * *

Administration officials said that by Aug. 4 they will release information on the performance of individual mortgage-servicing companies, including the number of trial modifications offered to eligible borrowers and the number of trial plans that are under way.

Ind. Law - "It's the Law: Possessing drug paraphernalia is an offense"

People who use a pipe to smoke marijuana or crack cocaine, or who use a needle to inject themselves with heroin should know they can get arrested long after the drugs are gone.

Indiana law states it is illegal to possess drug paraphernalia, which is defined as an object used to ingest drugs, test drugs or enhance the effect of drugs.

Jeff Biggs, who supervises the undercover Porter County Drug Task Force, said the most commonly seen paraphernalia includes multicolored glass pipes for smoking marijuana, glass tubes with mesh filters used for smoking crack cocaine, and spoons and needles used to heat and inject heroin.

Biggs said drug sellers and purchasers also often have scales to make sure the amount of drug being sold or purchased is being accurately represented. * * *

Biggs said possession of paraphernalia is generally charged as a misdemeanor if the device has drug residue in it or if there is evidence that the person possessing it used it or was planning to use it. A person can get in trouble for possessing paraphernalia even if the device actually belongs to a friend. A person's second offense under the paraphernalia statute is a felony.

And even the paraphernalia has never been used and the person doesn't know it is even drug paraphernalia, they could receive a citation, Biggs said.

A $42 million judgment against the state Tuesday over back pay to state workers won't quite break Indiana's bank, but it's hardly welcome news in a tight budget year.

The ruling by a Marion County judge -- one of the largest ever against the state -- resolved a 16-year-old class-action lawsuit by current and former state workers who said they were underpaid going back to 1973.
Advertisement

A plaintiffs' attorney said as many as 15,000 people potentially affected by the ruling won't see a penny while the state pursues appeals -- a route Gov. Mitch Daniels supports.

Judge John Hanley issued the $42.4 million judgment based on arguments and testimony heard during a four-day trial in March.

The amount would cover back pay for state employees who worked 40-hour weeks from 1973 to 1993, yet received the same pay as others in similar jobs who logged only 37.5 hours.

"These are people who put their own hard work on the line for years, and the state would only be compensating these people their just due," said John Kautzman, an Indianapolis attorney who represented some of the plaintiffs. * * *

"It's a case that probably should have been dismissed in the Bayh administration," said Jane Jankowski, Daniels' press secretary. "We're confident now that the appeals court . . . will set this right and do it in a manner that will protect Hoosier taxpayers." * * *

Hanley's ruling acknowledged the judgment's timing during the recession "will not be widely appreciated."

"However, these are political considerations and not legal ones," the ruling says. "The parties have had numerous opportunities to resolve this litigation over an extended number of years, in good economic times as well as bad, without the necessity of judicial intervention, and they have failed to do so."

The new judgment barely exceeds the $38 million spent by the state on an average day, Hanley noted. Its annual payroll is $1.3 billion. * * *

The state ended the unequal pay system in 1993 by mandating 37.5-hour weeks for all employees.

But the lawsuit has endured years of legal challenges, and Kautzman called Tuesday's ruling the state's "day of reckoning."

A year ago, the state approved an $8.5 million settlement, but it backed out after claims by former workers exceeded that amount -- reaching more than $30 million, Kautzman said.

An expert hired by the plaintiffs arrived at the $42.4 million figure by analyzing incomplete state records on microfilm, Kautzman said.

The four class representatives worked for Richmond State Hospital and the Indiana Department of Transportation.

Updating this ILB entry from April 1st, Jon Murray reports this afternoon:

A Marion County judge today issued a $42.4 million ruling against the state of Indiana in a class-action lawsuit by current and former state workers who said they were underpaid for 20 years.

Note that this is the state workers lawsuit for back pay during 1973-1993 period, which went to trial only after (see this March 10th ILB entry) the original settlement fell through ("A settlement agreement announced in August later was abandoned by the state after compensation claims exceeded its $8.5 million threshold.")

Murray's story today continues:

The lawsuit, which has been pending for years, went on trial over four days in March before Marion Superior Court Judge John Hanley. He issued his verdict today.

The $42,422,788 judgment was based on estimates that as many as 15,000 state employees worked 40-hour weeks from 1973 to 1993, yet received the same pay as others in similar jobs who worked only 37.5 hours. The plaintiffs' consultant had estimated total unpaid compensation at $42 million to $82 million.

Hanley's ruling could be a bitter pill for the state amid a recession that complicated negotiations earlier this year over Indiana's $27.8 billion two-year budget.

"This amount will not be widely appreciated for that reason," the judge wrote, but added: "However, these are political considerations and not legal ones. The parties have had numerous opportunities to resolve this litigation over an extended number of years, in good economic times as well as bad, without the necessity of judicial intervention, and they have failed to do so. This decision today is the necessary result of that failure."

The ILB would like to post a copy of the ruling. The version linked to on the Star's site appears to be messed up.

[Updated 6:20 PM] Here is a release on the ruling:

Court Awards $42.4 Million Against State of Indiana

Victory on Behalf of Indiana State Employees Believed to Be Among Largest Class Action Judgments Against State in History

INDIANAPOLIS, July 28 /PRNewswire/ -- An Indiana trial court has awarded more than $42 million to current and former Indiana state employees who were required by the State of Indiana to work 40-hour workweeks from 1973 until 1993 even though other state employees holding the same positions were required by the State to work only 37.5-hour workweeks for exactly the same pay. Judge John Hanley of the Marion Superior Court issued findings of fact, conclusions of law and a judgment earlier this morning.

Suit was filed almost sixteen years ago, on July 29, 1993, when attorneys William A. Hasbrook and John F. Kautzman of Indianapolis-based Ruckelshaus, Kautzman, Blackwell, Bemis & Hasbrook filed the original class action complaint. The crux of the plaintiffs' complaint has from the beginning been that the State was not legally permitted to force state employees in particular job classifications to work 2.5 hours more per week than other state employees in the same job classifications, while still paying them exactly the same pay as their lower-hour counterparts. Sixteen years and one four-day bench trial later, the Indiana court agreed and found in favor of the plaintiffs, awarding $42.4 million in damages for 20 years that the State continued making this unjust demand of certain of its employees.

Over the course of the litigation, the case has been up and down to the Indiana appeals courts numerous times, with the plaintiffs emerging victorious each time. The case had also been overseen by a succession of judges, until Judge Hanley set the case for trial in March of this year.

In 2008, the Ruckelshaus firm brought on Texas-based litigation firm Susman Godfrey LLP as co-trial counsel. Regarding the judgment, Steve Susman of Susman Godfrey said, "The Indiana state employees who are plaintiffs in this case have had to wait an extraordinarily long time for justice. But now that justice has come, these employees should finally be paid the full wage they earned so many years ago." Mr. Hasbrook of the Ruckelshaus firm said, "We thank our class representatives, all class members, and the Indiana State Employees Association for their patience and dedication in seeing the case through to this judgment. We are extremely pleased that the Court has validated the claims of Indiana's hard-working State employees."

The $42.4 million dollar judgment is believed to be among the largest class action judgments against the State of Indiana in its history.

The plaintiff class was represented by Mr. Susman and two of his colleagues from Susman Godfrey, Jonathan Bridges and Stephen Shackelford, Jr., and by Mr. Hasbrook and Mr. Kautzman from the Ruckelshaus firm.

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

James Nichols appeals a judgment in favor of Maureen Utley, personal representative of the Estate of Ernest M. Tyler. Nichols raises two issues, which we revise and restate as: I. Whether the trial court erred when it concluded that Ernest Tyler was incompetent on February 8, 2005 to convey real property; and II. Whether the trial court erred by determining that Nichols failed to rebut the presumption of undue influence over Ernest Tyler with regard to a real property transfer. * * *

The first issue is whether the trial court erred by concluding that Tyler was mentally incompetent to sign the Contract on February 8, 2005. * * *

We conclude that the trial court's judgment that Tyler was incompetent to sign the Contract on February 8, 2005 was not clearly erroneous. * * *

The next issue is whether the trial court erred in determining that Nichols failed to rebut the presumption of undue influence over Ernest Tyler with regard to a real property transfer. * * *

The trial court determined that Nichols was not a credible witness. Nichols did not defeat the presumption that the transaction was the product of undue influence by clear and unequivocal proof. Specifically, Nichols failed to demonstrate that he did not take advantage of the opportunity to exercise heavy and undue influence on Tyler, an elderly man not his relative, and who had a history of mental infirmity, between 2001 and 2005. Unlike in Meyer v. Wright, relied upon by Nichols, Nichols never had Tyler examined by a doctor who might have provided independent judgment as to Tyler's ability to enter into an arm's length transaction. 854 N.E.2d 57, 61 (Ind. Ct. App. 2006), trans. denied. Nichols instead relied entirely on a determination made by an attorney who was not a medical expert and who was never made aware of, nor inquired into, Tyler's mental health history.

Though couched differently, Nichols's arguments are little more than an invitation for this Court to reweigh the evidence presented at trial, which we cannot do. ... At trial, two very different images of Ernest Tyler were depicted by the parties, and the trial court found that the depiction presented by Tyler's Estate was the more accurate one. We cannot say that the trial court erred by determining that Nichols failed to rebut the presumption of undue influence. * * *

For the foregoing reasons, we affirm the trial court's judgment.

NFP civil opinions today (1):

Mark Jones v. Marlene (Jones) Huckaby (NFP) - "The trial court’s decisions to continue the joint custody arrangement and increase Father’s share of the child support are not clearly erroneous. It was unnecessary for the trial court to include additional directives regarding contacts with maternal grandfather."

Ind. Decisions - One Indiana decision from the 7th Circuit

Advocacy Services asked for records about J.Y.G., a
mentally disabled patient at LaRue Carter Memorial
Hospital. J.Y.G. had died, and Advocacy Services wanted
to learn whether she was a victim of abuse, so that it
could propose improvements in medical procedures. The
Hospital, a part of the state, see Ind. Code §12-7-2-184,
declined to furnish all of the records that Advocacy
Services wanted. Some of them are covered by state
privacy protections, the Hospital asserted, and the disclosure
of others would violate the privacy interests of
J.Y.G.’s parents. Advocacy Services then filed this
suit in federal court, naming as defendants not only the
Hospital but also the Indiana Family and Social Services
Administration (which superintends the Hospital), plus
several state officials. The district court held that defendants
must hand over the records, because J.Y.G. was an
adult at the time of death and her parents had not
been appointed as her legal guardians. The absence of a guardian brought J.Y.G. within the scope of Advocacy
Services’ authority under §10805(a)(4) and 42 C.F.R. §51.2,
the commentary to which says that parents are deemed
guardians of minor children but not of adult children,
unless the parents are appointed to that role by a court.

Defendants (collectively “Indiana”) contend on appeal
that the regulation is invalid and that parents should be
treated as guardians of their (mentally disabled) adult as
well as their minor children, whether or not a court
appoints them to that role. If J.Y.G.’s parents were her
guardians, then Advocacy Services needs their consent.
Disclosure without consent, Indiana maintains, would
violate the parents’ constitutional and statutory rights.

Underneath this apparently simple dispute lies a
bushel full of issues that the parties did not mention in
the district court, or this court. * * *

Some future decision will need to wrestle with the
problems that arise when a “system” established as a
private organization sues in federal court to obtain information
from a private medical provider, or when a
“system” sues its home state in state court. This suit,
between one state agency and another, is outside the
scope of §1983 and blocked by the eleventh amendment.
The judgment of the district court is vacated, and the
case is remanded with instructions to dismiss for want
of jurisdiction.

Ind. Gov't. - More on: Who should decide Indiana's position on national legal issues? Who should know?

Updating yesterday's ILB entry, Attorney General Zoeller's office has now completed preparing its response to the ILB's May 19th request:

I've read several national stories lately where Indiana is listed as among the states joining into a lawsuit -- there are two examples in this entry I've just posted:

Can you send me a list of these suits? Better still, broken down into those since Zoeller took office, and those entered into before?

In my opinion, the AG's office has done a bang-up job in putting together these tables, which they prepared in Excel and I have converted to HTML. As the ILB receives new information, it will do updates. Here are the links:

Ind. Courts - FWJG on campaigns for judges

The Fort Wayne Journal Gazette has a long and somewhat unfocused editorial today, that concludes:

As long as candidates must run for office, however, many may still continue to decline to answer questionnaires, particularly from highly ideological groups like Right to Life. When campaigning, candidates now have leeway to explain their legal philosophies but must continue to take care not to make pledges on how they would rule on specific cases.

A Jeffersonville woman who shot a motorcyclist in what she said was self-defense during a confrontation on a city street faces up to 20 years in prison if convicted in a trial scheduled to start Tuesday in Clark Circuit Court.

Yalanda Sue Parrish, 40, was charged with aggravated battery in the June 17, 2008, shooting of motorcyclist Wesley Mosier, 54, who survived a blast to his chest from a .38-caliber revolver.

Police described the shooting as a road-rage incident. The two had a dispute as they drove along 10th Street, and it culminated in the shooting after they had stopped at Allison Lane.

Mosier, who was in front on his motorcycle, got off the bike and walked back to Parrish's sport utility vehicle. Parrish said Mosier tried to punch her through her open window, but Mosier denied being aggressive and said he merely wanted to ask Parrish why she was tailgating him.

“I have just shot somebody up on 10th Street,” Parrish told a police dispatcher, according to the 911 tape released by police.

Clark County Prosecutor Steve Stewart said Monday that the question for jurors will be “whether or not she was in fear of death or serious bodily injury at the time she pulled the trigger. And I don't think there will be any question but the answer … is no.”

As for Parrish's claim of self-defense, Stewart said, “Our belief is she wasn't threatened at all by him.”

From Nick Schneider's very long story yesterday in the Greene County Daily World, here is the beginning:

If the Greene County Courthouse renovation project has had any common elements it has been delay and unexpected costs.

The project was nearly five years going from the drawing board stage to completion. There were a number of delays when several structural flaws surfaced.

And, now for nearly five years, Greene County has been engaged in a complicated civil lawsuit to collect up to $6.5 million in unexpected cost related to the original $10.5 million remodeling/renovation project that has turned into a $17 million nightmare.

The construction project has been substantially completed for more than a year, but the lawsuit -- which originated in 2004 is still an active case.

Legal fees associated in fighting to get back money the county believes it is owed has been costly -- with legal fees now at more than a $1 million and counting, according to commissioner's attorney Marilyn Hartman of the Bloomfield law firm of Hartman & Paddock.

The county is being represented in the suit -- now pending in Owen Circuit Court -- by the Indianapolis law office of Drewry Simmons Pitts & Vornehm. Hartman is assisting on the local end of the legal fight.

Former Greene County Judge David Johnson signed an order in March 2005 granting a change of venue to Owen Circuit Court.

There have been at least three new jury trial dates in the case -- the latest is set for 9 a.m. on April 12, 2010.

A spokesperson in the Owen Circuit Court said the case already had nine files of court documents.

Hartman called the case a very complicated and technical one.

"Whenever you get into heavy duty litigation, litigation becomes what we call a motions process," Hartman explained. "These are all very legal, technical issues that result in getting one advantage or another in going forward with the litigation. None of these motions mean 'we lost' or 'we won'. They are ways you can eliminate having to pursue a particular issue at trial."

Ind. Gov't. - Interim Legislative Study Committees created

The Legislative Council, a bipartisan panel made up of leaders from the Democratic-controlled House and the Republican-led Senate, voted unanimously Monday to have the State Budget Committee look into the modernization project this summer.

Southwestern Indiana lawmakers made several attempts to bring the project under review while the General Assembly was in session earlier this year, but they were rebuffed when their bills died in the Senate, partly because of opposition from Gov. Mitch Daniels' administration.

Monday's decision signaled growing concern over whether the new system is improperly denying benefits to those who qualify, and could hint at an erosion of the opposition Senate Republican leadership has had to legislative intervention. * * *

Daniels' administration signed the deal in 2006 in hopes of improving efficiency and reducing fraud and waste in Indiana's Family and Social Services Administration.

The team of contractors shifted resources from the old system of caseworkers in local offices in favor of a statewide call center and document processing system in an effort to update the way the state handled applications for benefits such as Medicaid, food stamps and Temporary Assistance for Needy Families.

The system had been rolled out in 59 of Indiana's 92 counties before FSSA Secretary Anne Murphy voluntarily paused the rollout early this year.

Murphy recently said the IBM-led team submitted a "corrective action plan" consisting of more than 200 fixes aimed at alleviating some of the concerns lawmakers have expressed, such as long waits on hold with the call center and lost documents within the online system.

Here is the one-line resolution that was adopted recommending "that the Budget Committee investigate
the status of IBM's compliance with its contract with FSSA and review alternative service models
available in the event of a breach of that contract."

As today's story also reports:

During Monday's Legislative Council meetings, lawmakers also created a panel to study gambling issues. That panel, which includes Sen. Bob Deig, D-Evansville, and Rep. Trent Van Haaften, D-Mount Vernon, will be conducting the first comprehensive review of Indiana gaming law since 1993, Legislative Council leaders said.

Topping the gambling study committee's agenda will be consideration of a proposal by northwestern Indiana lawmakers to allow Gary to move one of its two riverboats to a more profitable location.

The ILB has obtained a copy of the ILC's charge ("expectations') to this Gaming Study Committee, accompanied by the text of SECTION 490 of HEA 1001, the special session budget bill, which details the Committee's responsibilities.

In addition, the ILC also created a long list of other interim studies, detailed in this resolution adopted yesterday.

Ind. Decisions - Attorney General files for rehearing in Camm ruling

It's a long shot request, one that rarely leads the court to overturn one of its own rulings. But Attorney General Greg Zoeller said Monday the justices overlooked key parts of the trial record and the state's arguments and should reinstate Camm's conviction. * * *

If the court upholds its original ruling, Floyd County Prosecutor Keith Henderson will have to decide whether to re-charge Camm, a former state trooper.

“We'll cross that bridge when we come to it,” Henderson said Monday about the possibility of a third trial.

Katharine Liell, one of Camm's lawyers, said Camm's legal team will file a response opposing the attorney general's request.

“We've been preparing for 3-1/2 years for another trial,” she said. “We fully anticipated that there would be a third trial.”

She said there's still forensic evidence, such as fingerprints and DNA that were never identified previously, that could prove Camm's innocence. * * *

Larry Landis, executive director of the Indiana Public Defender Council, said it's “very rare” for the court to grant a petition to rehear a case, and even more unusual for the justices to reverse a decision. That's particularly true where the decision is 4-1, he said.

“It would take two people to change their minds — not just one,” Landis said. “And with such a high-profile, significant case, I don't think there were any inadvertent mistakes, something not well thought out and not well debated. I'm just guessing, but … I doubt there's anything left to argue.”

Indianapolis appellate attorney Karl Mulvaney, who previously worked as the administrator of the Indiana Supreme Court, said the justices will occasionally agree to a rehearing to correct an error of fact in their original decision or to clarify a ruling. But the court seldom reverses itself.

Here is Attorney General Zoeller's press release yesterday announcing that: "The Office of the Indiana Attorney General today is filing a petition for a rehearing asking the Indiana Supreme Court to reconsider its earlier opinion granting David Camm a new trial."

Monday, July 27, 2009

Ind. Law - "It's the Law: messing with a judge is criminal"

Ken Kosky's NWI Times'"It's the Law"column today, July 27th, looks at courtroom laws, in the first of two articles about courts:

During her 25 years on the bench, Porter Circuit Court Judge Mary Harper has had people angry with her judgement physically attack her, yell at her and overturn tables.

This, the first of two on courtroom laws and etiquette, examines illegal actions in a courtroom.

Criminally, anything that could get a person arrested on the streets could get them arrested in a courtroom. Showing up intoxicated could get a person arrested on a public intoxication charge. Scratching words onto the benches could result in a criminal mischief charge. And getting caught with drugs could lead to charges.

In addition, there are actions specific to a courtroom that could get a person arrested. For example, a person who lies under oath can be charged with perjury. A person who fails to appear in court could have a warrant issued for their arrest. And a person who fails to comply with a court order -- such as being ordered to perform community service, but failing to do it -- could have a warrant issued for their arrest.

Judges also have the power to hold someone in direct criminal contempt. For example, a person who swears at the judge or attacks the judge could be held in contempt of court and could be immediately taken off to jail for as many as 90 days.

In 2006, a man angry about a speeding ticket flipped a judge the middle finger and called him an obscene name. The judge, Porter Superior Court Judge David Chidester, held the man in contempt of court and ordered him jailed.

And a few months ago, a jail inmate was appearing before Chidester via a video conference and said a swear word to describe the proceedings. Chidester turned off the television and let the man sit behind bars to think about his actions.

Niki Kelly of the Fort Wayne Journal Gazettereports this afternoon in a story that begins:

Legislative leaders voted Monday to have the State Budget Committee investigate whether IBM is meeting its obligations under a 10-year, $1.16 billion contract with the state to handle the eligibility process for food stamps, Medicaid and other assistance.

The Legislative Council resolution, which also requires the budget committee to review alternative service models should the contract be breached, passed unanimously.

Ind. Gov't. - More on: Southern Indiana town may file for bankruptcy protection

Appropo of the ILB entry this morning on the Town of Georgetown's financial woes, worth a look is this story today by Jonathan Oosting at Mlive.com, headlined "Bankruptcy a good option for Detroit." The story lists nine reasons why.

Ind. Gov't. - Who should decide Indiana's position on national legal issues? Who should know?

Indiana Legislative Insight had this item in this week's edition:

The State of Indiana joins 32 other states (California also
filed separately) in an amicus brief asking the U.S. Supreme
Court to grant certiorari in the case of Nat'l Rifle Ass'n v.
Chicago, and hold that the Second Amendment applies to
state and local governments through the Due Process Clause
of the Fourteenth Amendment. This bi-partisan group of
attorneys general from 34 states agrees with the National Rifle
Association's position that the Second Amendment protects
a fundamental individual right to keep and bear arms in the
home for self-defense, disagreeing with the ruling by a U.S.
Court of Appeals for the Seventh Circuit three-judge panel.

Here is a story from the Austin Business Journal with more information. Some quotes:

Texas Attorney General Greg Abbott joined with the attorneys general of 32 other states Tuesday in filing an amicus brief with the U.S. Supreme Court, which the authors say seeks to defend the rights of Americans to keep and bear arms.

The brief supports a legal challenge by Otis McDonald, a community activist who lives in a high-crime neighborhood in Chicago. McDonald’s work to improve his neighborhood has reportedly subjected him to violent threats from drug dealers, but city ordinances prohibit him from obtaining a handgun to protect himself. The state attorneys general argue that cities cannot simply ignore the Second Amendment of the U.S. Constitution and impose a blanket ban on handguns.

“Last year, the Supreme Court of the United States struck down the District of Columbia’s handgun ban and held that the Second Amendment protects individual Americans’ right to keep and bear arms,” Abbott said in a statement. “The brief filed today urges the nation’s highest court to hear community activist Otis McDonald’s challenge to an ordinance that prohibits him from possessing a handgun to protect himself from the criminals he has worked to eradicate from his high-crime neighborhood. Today’s amicus brief reflects an effort...to defend law-abiding Americans’ constitutionally protected right to keep and bear arms.”

NEW ORLEANS - Attorneys general from more than a dozen states asked a federal appeals court in New Orleans this week to review a ruling that they warn could cripple their open meetings laws. * * *

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states joined Abbott in asking for a rehearing by all of the 5th Circuit's judges.

"Subjecting open meetings laws to 'the most stringent review' of strict scrutiny ... is wrong as a matter of precedent and logic," Louisiana Attorney General James "Buddy" Caldwell wrote. "But it would also practically cripple the operation of those laws."

The list of attorneys general who signed onto Caldwell's brief includes those for Alabama, Arizona, Colorado, Florida, Idaho, Indiana, Illinois, Michigan, Mississippi, Montana, Nebraska, New Mexico, Nevada, Ohio, South Dakota and Virginia.

Request for Information. I concluded the May 19th entry:

The ILB is looking into whether the Attorney General's office will make available a list of such lawsuits that Indiana's AG has joined.

I wrote to the Attorney General Zoeller's information office the same day, asking:

I've read several national stories lately where Indiana is listed as among the states joining into a lawsuit -- there are two examples in this entry I've just posted:

Can you send me a list of these suits? Better still, broken down into those since Zoeller took office, and those entered into before?

Have you thought about making this available online? I think it is important when the State of Indiana takes a position on a national lawsuit that the public be aware of the suit, and the position of the State. Tracking the outcome would also be important.

I received a positive response. It was even suggested that the results would fall into three categories: (1) Amicus briefs we have written; (2) Amicus briefs we have joined; and (3) "Multistate" lawsuits that are open in which we participate.

I hoped for detailed online tables, linked to the amicus briefs. (Or at least enough information that the ILB could prepare and post tables itself.)

However, as of yet, no actual results. So I was reminded of this request this weekend when both Legislative Insight and the ILB had to look at newspapers outside Indiana for information that the Attorney General has taken a position on the Chicago gun case on behalf of the State of Indiana.

Who should decide Indiana's position on national legal issues? Who should know? These are the questions I posed in the heading to this entry. Some thoughts:

The attormey general in Indiana is elected, but it is not a constitutional office. At various times in the past, the law has provided that the governor appoint the attorney general.

The constitution distributes state government powers to three branches, the executive, legislative, and judicial. Can the general assembly create officials outside this framework and grant them powers? This question has come up a number of times in Indiana's past.

The attorney general and the governor currently happen to be of the same party, but that has not been so at times in the past, and it is not assured.

INDIANAPOLIS – The Indiana attorney general's office is planning to formally petition the Indiana Supreme Court to reconsider its decision to grant former state trooper David Camm a new trial in the September 2000 murders of his wife and children.

The state office has until midnight Monday to file the request. * * *

Floyd County Prosecutor Keith Henderson previously said he would decide whether to re-charge Camm after the Supreme Court makes a decision on the petition to rehear the case. Henderson is expected to hold a news conference Monday to talk about the case.

Ind. Decisions - Transfer list for week ending July 24, 2009

Here is the Clerk's transfer list for the week ending July 17, 2009. It is three pages long.

Two transfers were granted; they were discussed in this ILB entry from July 23rd.

________

Transfer lists have new feature. The "Denied/Granted" column, beginning in March 2009, includes the votes of the justices.

Search all the Transfer Lists: A new ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the May 22nd list.

Over five years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Law - Still more on "Amazon's Kindle to Sell Law Books" and the implications

Updating this ILB entry from July 23rd, here are several items of interest.

"When the Kindle Hits the Ivory Tower, How Will the Academy React?" was the heading to this July 24th entry in the WSJ Law Blog. The entry quotes a UCLA professor, whose remarks confirm what I wrote in this July 19th ILB entry about the high cost of books and how publishers (and text book authors) were looking for ways to circumvent the used book market (and its saving to students, or losses to publishers, depending on your point of view).

The brand-new issue of the New Yorker, not yet on the stands, has an article on the Kindle by Nicholson Baker, which goes into much detail -- a must read if you are following this topic closely.

Finally, the NY Times yesterday had an article by Brad Stone headlined "Amazon Faces a Fight Over Its E-Books ." Some quotes:

A growing number of civil libertarians and customer advocates wants Amazon to fundamentally alter its method for selling Kindle books, lest it be forced to one day change or recall books, perhaps by a judge ruling in a defamation case — or by a government deciding a particular work is politically damaging or embarrassing.

“As long as Amazon maintains control of the device it will have this ability to remove books and that means they will be tempted to use it or they will be forced to it,” said Holmes Wilson, campaigns manager of the Free Software Foundation.

The foundation, based in Boston, is soliciting signatures from librarians, publishers and major authors and public intellectuals. This week it plans to present a petition to Amazon asking it to give up control over the books people load on their Kindles, and to reconsider its use of the software called digital rights management, or D.R.M. The software allows the company to maintain strict control over the copies of electronic books on its reader and also prevents other companies from selling material for the device.

Two years after Amazon first introduced the Kindle and lighted a fire under the e-books market, there is increasing awareness of how traditional libraries of paper and ink differ from those made of bits and bytes. The D.R.M. in Amazon’s Kindle books, backed up by license agreements with copyright holders, prevents customers from copying or reselling Kindle books — the legal right of “first sale” that is guaranteed to owners of regular books.

D.R.M. has created a new dynamic between consumers and the vendors of digital media like books and movies. People do not so much own, but rent this media. And the rental agreement can be breached by the manufacturer at any time, sometime with little or no notice.

People are also worried that the very architecture of network-connected devices like the Kindle, TiVo or iPod give tech companies unprecedented control over digital media and by extension, the free exchange of ideas.

Once upon a time, retailers sold customers a product and then walked away after the transaction. Today’s specialized devices often keep an umbilical cord to their vendor, loading updates and offering convenient ways to make purchases. These devices also limit the extent to which people can load independent software and customize their experiences. * * *

But critics say that any device capable of interfering with how its owner uses media is potentially dangerous. “I worry that systems like these tethered appliances are gifts to regulators,” said Jonathan Zittrain, a professor at Harvard Law School and author of the book, “The Future of the Internet — and How to Stop It.” Mr. Zittrain predicts that governments in some parts of the world will want to use it “like a line item veto for content,” removing objectionable sentences or chapters in some books.

“It could happen first in jurisdictions like the United Kingdom, where there isn’t as rich a First Amendment tradition and where libel suits happen much more frequently,” he said.

Chief Justice John Minton Jr. said in an interview that Jefferson is the only county in which lawyers file notices of final motions, and even there, the process is too unreliable to be used "as a punishment tool."

He said efforts to streamline reporting suffered a major setback last year when a state computer system crashed and case information had to be retyped into new software.

"This is a work in progress," Minton said.

Today the Courier Journal has an amazing, and long, story by Emily Hagedorn about the theft of Bullitt County's funds by Ukrainian hackers: Some quotes:

The world suddenly seemed a lot smaller in late June, following the theft of $415,000 from a bank account belonging to Bullitt County government.
Advertisement

Investigators say Ukrainian criminals hacked their way into Bullitt government computers using malicious code also used to hijack $6million from banks in the United States, United Kingdom, Spain and Italy in 2007.

Federal investigators are still trying to determine where the Bullitt taxpayers' funds have gone. FBI spokesman David Beyer of the Louisville office said the investigation may take several more weeks.

But computer experts say the malicious code, which Bullitt officials identified as “ZeuS,” is a stealthy type of trojan software popular among hackers. A trojan is a program that appears legitimate but actually performs illicit activity.

And it's become more popular in the past six months, Jackson said, adding that he is seeing two to four major ZeuS incidents a month, compared to one or none in previous months.

Most ZeuS strains are stopped by virus-protection software, but if it gets in, “it's looking over your shoulder when you're doing your banking,” said Elizabeth Clarke, SecureWorks spokeswoman. “It usually grabs everything it needs to play you.”

Bullitt County and its bank, Elizabethtown-based First Federal Savings Bank, are just beginning to grapple with the ramifications left in ZeuS' wake.

Bullitt officials said the culprits hacked into an e-mail to gain access to county government passwords and used them to withdraw funds from an account used to pay county employees.

Bullitt County recovered $105,813.06 of the $415,989.17 discovered missing June 29 by reversing transactions in accounts still containing the stolen money.

The county and bank are battling over who is responsible for the unrecovered funds.

Greg Schreacke, president of First Federal Savings Bank, said the county's computers were compromised, not the bank's, and the bank has refused to refund the rest of the stolen money.

Bullitt Fiscal Court voted July 21 to sue the bank for the unrecovered money, plus interest and legal fees.
Advertisement

Fiscal Court also voted to spend $2,683 for more security measures, including a better router/firewall unit, external drive and hard drive, for the county treasurer.

Other governments have other safeguards to protect against such crimes.

For example, Oldham County government requires physical checks to take money out of accounts, said Shawn Boyle, county financial officer. Money can be transferred online only from one county account to another.

Louisville Metro Government and Oldham Fiscal Court both outsource their payroll, so if the account is compromised, the payroll vendor is responsible for that money.

Schreacke said the hackers who stole from Bullitt government were so successful that from the bank's perspective, they transferred money just as if the county had done it.

The layers of protection infiltrated include a separate software program for commercial online banking that's not Web-based and security protocol that recognizes when a different computer accesses it, Schreacke said. A security code is sent via e-mail that is good for 20 minutes and must be used to get into the account.

Transfers also require dual authorization.

The banking software does not allow the administrator's e-mail to be changed, so Schreacke believes someone at the county was alerted to the transactions and approved them.

But Bullitt County Attorney Walt Sholar said no one at the county approved the transactions.

The illegal transfers were discovered after a county employee asked the bank about the account's activity, Schreacke said. * * *

George Cummings, information technology technician with Madisonville-based Computer Knights, an information technology company that contracts with the county, said Bullitt “actually had a really good anti-virus program on there,” which was also up to date.

Herald J. Adams of the Louisville Courier Journalreports today in a lengthy article that begins:

Facing a debt of $1.45 million over a long-delayed sewage plant project, the Floyd County town of Georgetown has taken the first step toward what would be an unprecedented move for an Indiana municipality — filing for bankruptcy protection.

Whether Georgetown could do that, however, is in dispute. State officials say Indiana law doesn't authorize a town to declare bankruptcy.

Georgetown's leaders “have no authority” to declare the town bankrupt, said Brian Bailey, general counsel for the Indiana Department of Local Government Finance.

Bailey cited a 1994 update to the federal bankruptcy code that says a municipality “must be specifically authorized” by state law to be a debtor, and no Indiana law does that. (Kentucky law authorizes its local governments to file for bankruptcy, but none have ever done so.)

Georgetown Town Council President Billy Stewart said there may be no other option.

“There's no way for Georgetown to pay” its debts, he said. “We don't have it.”

David Andrews, the town attorney, said officials are attempting to find other ways to deal with its debt.

But just in case, it approved an ordinance on June 29 intended to give itself authority to seek bankruptcy — relying on Indiana's Home Rule Act, which grants local governments any authority not specifically prohibited by the state.

“It gives us virtually any power that we want to exercise,” he said.

But the state's Bailey rejects that idea, too. Under the federal bankruptcy law, a state's authorization “has to be specific,” he said, “and it can't be something that's just inferred from a general grant of power such as … the Home Rule Act.”

Home Rule, he said, is “not going to be enough to get over the hurdle.”

Ann Gellis, a professor at Indiana University's Maurer School of Law with expertise in local government, agrees with that assessment.

“Clearly the Home Rule statute does not authorize any municipality to be a debtor,” she said after reviewing the law Friday. “It's just not there.”

More from the story:

Amanda Stanley, a spokeswoman for the Department of Local Government Finance, said Indiana law does provide other options for localities in Georgetown's situation. She said the town could take out bonds to pay any court judgment and repay the bonds with a tax that would not count against its state-imposed taxing limit.
Advertisement

But Andrews said Georgetown might not be interested in bonds.

“If a bankruptcy were possible, then that would be something that might be preferable to paying out on a big judgment,” he said.

He also said the town might be willing to put up a legal challenge to the notion that Home Rule doesn't give it the authority required under federal bankruptcy law.

“There's never been a case that we know of to test this exact point of law,” Andrews said. “We feel pretty strongly that we've got a good chance” at winning such a challenge.

Courts - Another article on impact of Melendez-Diaz v. Massachusetts

Today David G. Savage has an article in the LA Times headed: "Supreme Court ruling shakes up criminal trials: Cases have been thrown out and doubts linger after last month's decision giving defendants the right to question forensic technicians in court." It begins:

Reporting from Washington -- Until last month, the strongest evidence in drug and drunk driving cases in courtrooms across the nation often was a piece of paper. A crime lab or Breathalyzer report would confirm that the defendant indeed had illegal drugs or a high level of alcohol in his or her system.

But a Supreme Court decision has sent a jolt through that procedure.

Now the prosecution must make a lab technician available to testify in person if the defendant demands it. As a result, some cases already have been dismissed. One state, Virginia, has called a special legislative session to change its laws. And some lawyers think the ruling will continue to have a major effect.

In a 5-4 decision, the high court said that lab reports served as “witnesses” for the prosecution. And because the 6th Amendment gives defendants a right to "be confronted with the witnesses against him," Justice Antonin Scalia said that drug defendants and others were "entitled to be confronted with the [lab] analysts at trial."

While Scalia said the decision upheld the basic right to question the prosecution's witnesses, the four dissenters said the ruling had "vast potential to disrupt" the criminal courts. They also said it gave "a great windfall" to defendants, some of whom could have their cases dismissed because a lab technician was not available to testify.

Some prosecutors have said they fear the uncertainty -- and the potential cost -- of being required to have lab technicians ready to testify.

Sunday, July 26, 2009

Ind. Courts - "Three lawsuits may change how NCAA operates"

Mark Alesia of the Indianapolis Starreports today that: "The NCAA has spent more than $84 million defending lawsuits since 1995. Three ongoing lawsuits could reshape the relationship among the NCAA, universities and its athletes." See these ILB entries from May 7th and July 22nd, along with this one from Feb. 13th, for background.

Alesia writes today:

The NCAA maintains it serves the interests of universities and their athletes. But the ever-expanding commercialism of college sports increasingly places those interests at odds.

The result is a new string of legal challenges brought against the National Collegiate Athletic Association by athletes who think they have been unfairly used for financial gain or hamstrung as they pursue their own financial gain.

Those challenges not only may redefine the relationship among the NCAA, universities and athletes, but they also come with a hefty price tag.

Since 1995, the Indianapolis-based NCAA has spent more than $84 million on legal fees, a figure that includes some of its settlements, according to The Indianapolis Star's analysis of Internal Revenue Service filings and interviews with the NCAA.

It might not be unusual for a business of similar size -- the NCAA reported revenue of $657 million in 2007-08. But experts said the nonprofit NCAA -- classified by the IRS as an educational organization -- is an inviting target for lawsuits as it tries to balance the ideals of higher education and amateur sports with the demands of a sprawling sports entertainment industry.

The latest athlete to take aim is former UCLA basketball star Ed O'Bannon, who last week filed an antitrust lawsuit contending that the NCAA and its member schools illegally profit from using former players' images in DVDs, TV ads and other commercial pursuits.

The legal target on the NCAA's back grows with every lucrative new television or coach's contract, said Gabe Feldman, director of the sports law program at Tulane University.

"What might be changing is that the NCAA for years has been given great deference by courts for rules to preserve amateur and educational goals," Feldman said. "Some of that deference fades as it appears the inequity grows larger between what the athletes get and the schools get." * * *

O'Bannon's class-action lawsuit, which focuses on the sale of players' images after they leave school, has the potential to inflict large financial damage on the NCAA. Antitrust judgments are automatically tripled.

But it's another pending case that, because of its effect on amateurism rules, "could unravel the way the NCAA operates entirely," said Gary Roberts, dean of the Indiana University School of Law-Indianapolis and an expert in sports law.

In February, an Ohio judge ruled in favor of then-Oklahoma State University pitcher Andy Oliver, striking down an NCAA rule prohibiting players from having agents, as Oliver did in high school.

The judge said the rule -- and an exception allowing players to consult with agents (but not have them negotiate with a pro team) -- "hinders representation by legal counsel" and is "fraught with ethical dilemmas."

The judge in the case also struck down a rule forcing schools to risk financial and other penalties if they don't immediately suspend players the NCAA says have violated a rule, even if there's a court injunction allowing the person to play.

Roberts has written that the NCAA rule is necessary. He argued that it's necessary to prevent cheaters from obtaining short-term injunctions to play in important games. Such injunctions, he wrote, would come from "local judges who often act out of partisan or parochial interests."

A jury trial to decide damages in the Oliver case is scheduled for October. * * *

A lawsuit filed in May by former Arizona State and University of Nebraska quarterback Sam Keller takes aim specifically at the use of players' images in the sale of video games.

All three plaintiffs -- Oliver, O'Bannon and Keller -- have significant obstacles to overcome, Feldman said. Courts already have narrowed players' publicity rights, and O'Bannon's antitrust claim will have to show consumer harm, he said.

Oliver might have the toughest road.

"It's an attack closer to the NCAA's core mission," he said. "The closer you get to rules on amateurism and eligibility, the more difficult it is to overturn."

But even if the NCAA prevails in these cases, it seems likely lawsuits will continue. In part, it's a response to the astounding money to be made from amateur athletics.

For decades, one of the nation's most widely used dry cleaning solvents was billed as a marvel of modern chemistry that could safely remove dirt and stains from clothing.

Shops sprang up to take advantage of the chemical, perchloroethylene, also known as PCE or perc. People became familiar with the sharp odor of clothes freshly removed from plastic wrap, a sign that perc was used to clean them.

But over the years, with little if any notice to the public, the often sloppy use of perchloroethylene has poisoned hundreds of sites in Illinois. As scientists linked perc exposure to cancer, liver damage, neurological problems and other ailments, regulators found problems in virtually every town with a dry cleaner.

The Illinois Environmental Protection Agency has signed off on cleanups of about 500 sites since the late 1990s. More than 400 polluted locations remain, though few neighbors may know it. Most are in Chicago and its suburbs.

At more than two dozen of these sites, state records show, the dry cleaning solvent threatens nearby water wells and residential areas. The most infamous example is in south suburban Crestwood, where village officials secretly drew water from a contaminated well for more than two decades.

Although none of the others appears to be as severe as Crestwood, the potential risks are great enough that the sites have been moved to the top of a state cleanup list.

To help clean up the contamination, the dry cleaning industry persuaded state lawmakers a decade ago to create an insurance fund financed by annual licenses and fees on the amount of perc used. The fund is expected to spend $2.75 million this year to help scour pollution from about 100 sites.

One of the most talked-about cases in Clark County is scheduled to finally go to trial Tuesday.

Yalanda Parrish, 40, of Jeffersonville, was indicted by a grand jury in July 2008 on charges of class C felony criminal recklessness and class B felony aggravated battery.

Parrish called 911 on June 17, 2008, and told the dispatcher that she shot someone on the corner of 10th Street and Allison Lane. Police and prosecutors have described the shooting as the culmination of a “road-rage” incident after Wesley Mosier Jr. road his motorcycle down East 10th Street followed by Parrish in her sport utility vehicle.

Parrish has claimed that she shot Mosier, 52, in self-defense as he approached her vehicle.

Mosier’s attorney, Larry Wilder, says his client was not acting aggressively as Parrish has claimed.

The trial has been continued five times, but Circuit Court Judge Dan Moore wrote when granting the last continuance that it would not be delayed again.

Negotiations between the parties have been deadlocked for at least several weeks, if not longer. In early July, Brian Butler, Parrish’s attorney, told The Evening News and The Tribune that Clark County Prosecutor Steve Stewart has not been open to any plea deals.

Courts - Jefferson Co. Kentucky judge can't explain chronic delays

Andrew Wolfson reports today in the Louisville Courier Journal in a lengthy story - here are some quotes:

For three years Dale Schwieman begged Jefferson Circuit Judge Barry Willett to rule on his motion for a hearing to present new evidence that Schwieman insisted would prove he didn't murder his wife.

"I don't understand what is taking this long," Schwieman wrote in 2005 from the Kentucky State Reformatory, after his motion had lingered for a year. "As a judge you are expected to make rulings on cases. This is the job you asked for."

The next year, his motion still unanswered, Schwieman pleaded with then-Chief Justice Joseph Lambert to "please correct this terrible injustice."

Schwieman finally got his hearing in 2007, but before Willett got around to ruling on his motion for a new trial, Schwieman had served out his sentence and left prison after 12 years — without a chance for the exoneration he sought, unless he wanted to risk a new trial.

He is not the only litigant to find the wheels of justice grind slowly in Willett's court, especially in civil cases.

Here is the part that caught the ILB's attention:

A computer analysis of internal state court documents provided to The Courier-Journal shows that as of May, Willett was responsible for more court delays than all of Jefferson County's other circuit judges combined.

Judges say the master list of cases with long-pending motions — compiled each month by the state Administrative Office of the Courts — is riddled with clerical errors, and the newspaper found that some of the motions listed as pending in Willett's court have been resolved.

But a half-dozen civil trial lawyers said in interviews that Willett is the slowest among Jefferson's Circuit judges. They include John Helmers Jr., who said he waited so long to get Willett to sign a default judgment in a contract dispute case that he finally just tried the case against the absent defendant. "He is the slowest circuit judge, by far," Helmers said.

And in an interview, Willett admitted he needs to be better organized and delegate more work to his staff. "I need to do a better job," he said. "Some of my old cases have fallen through the cracks," he said. "I have screwed up."

More:

Under state Supreme Court rules, lawyers are required to notify the Administrative Office of the Courts whenever they submit a motion to a judge that is ready for a final decision.

State law requires judges to explain in writing to the chief justice the reason for any motion that is pending more than 90 days.

The chief justice, in turn, is required to notify the Judicial Conduct Commission of any case in which a judge has failed to report the reason for the delay. Any judge who knowingly violates the law is subject to removal.

But Chief Justice John Minton Jr. said in an interview that Jefferson is the only county in which lawyers file notices of final motions, and even there, the process is too unreliable to be used "as a punishment tool."

He said efforts to streamline reporting suffered a major setback last year when a state computer system crashed and case information had to be retyped into new software.

"This is a work in progress," Minton said.

Judges in Jefferson County each month are given a list of their civil and criminal cases that have had final motions pending for over 45 days. The AOC considers the monthly list a preliminary document and won't release it publicly, but the newspaper was provided a copy of the May list and confirmed its authenticity.

It listed cumulative delays for Willett totaling more than the other 25 judges listed combined.

Willett receives generally high overall marks in judicial evaluations, but last year, he scored the second lowest among circuit judges in case management.

"I am criticized for not issuing evidentiary rulings quickly enough, and I plead guilty," he said in the July 16 interview with the newspaper.

He said he inherited a large backlog when he succeeded Judge Ernie Jasmin, and has never been able to overcome it.

He said he is also so tied up with trials and hearings — as many as 15 scheduled each day — that it is hard for him to carve out time to write opinions and orders.

Environment - Great Lakes losing even more water via St. Clair River

Although concern has been focused on withdrawals of water from the Great Lakes by adjacent states, the real conern may be the fact that the Great Lakes continue to lose massive amounts of fresh water to the Atlantic Ocean. This from a report today in the Milwaukee Journal-Sentinel, by Dan Egan. The report begins:

A U.S. and Canadian study exploring recent lower water levels on Lakes Michigan and Huron has dramatically miscalculated the amount of water the lakes have lost due to erosion on the St. Clair River, a new report says.

The new report found that the water loss was more than nine inches - more than double the four inches estimated by a study released in the spring by the International Joint Commission. That nine inches is in addition to the 16 inches that previous St. Clair dredging and riverbed mining have already cost the lakes.

The report was launched presumably to substantiate the commission study on what is happening on the river north of Detroit that is the main outflow for Lakes Michigan and Huron, which is one body of water connected at the Straits of Mackinac. It did the opposite.

The dispute over what is happening comes at a time when interest in the health of the Great Lakes is high, and the Obama administration has made the freshwater system's health a national priority.

Nine inches escaping out the river, tumbling over Niagara Falls and ultimately spilling into the Atlantic Ocean is not an insignificant amount of water. For comparison, Chicago reversed its namesake river a century ago so it flows out of Lake Michigan instead of into it. It now takes from the lake about 2.1 billion gallons a day. That has dropped Michigan-Huron's long-term average level by about two inches.

The International Joint Commission study was released on May 1. Two weeks before the release, its authors received what has come to be known as the "Baird Report" challenging their findings.

There were national stories of people using cellphones to photograph jurors, followed by stories of jurors using cellphones to tweet about the proceedings, or using home computers to conduct independent research. See this entry from July 2 headed "Tweeting, Texting, Googling Banned for Mich. Jurors."

In this comprehensive entry from July 4th, the ILB used as a springboard a story in the South Bend Tribune headed "St. Joseph County courtrooms will soon be outfitted with computers and Internet access, revolutionizing judges' access to information on the bench" to look at the question independent research by judges.

Attorneys are objecting to tougher rules for bringing laptop computers, cell phones and other electronic devices into Manhattan's Daniel Patrick Moynihan U.S. Courthouse.

Bar associations plan to ask Southern District federal judges next week to abandon an interim rule requiring a specific court order to bring specific computers, cell phones and other devices through entry security and into courtrooms. * * *

The July 29 hearing is set for 4 p.m. in Room 850 at 500 Pearl St. According to a court notice, the question is "on whether cell phones, PDAs, laptops, and other electronic devices should be permitted in the Courthouse; and if so, whether there should be any conditions or restrictions on their use?"

Judge Paul A. Crotty is accepting written comments until July 31 on the use of laptops and other electronic devices.

The Federal Bar Council, the New York County Lawyers' Association and the New York City Bar all are planning to weigh in on the policy changes.

Robert J. Giuffra Jr. of Sullivan & Cromwell, president of the Federal Bar Council, has submitted a letter to the court and is planning on speaking at the hearing. In his letter, he proposes extending Local Rule 1.8 to permit all lawyers to bring in electronic devices but subject to strict conditions.

Gregg H. Kanter of Fleming Zulack Williamson Zauderer serves on the NYCLA's Committee on Federal Courts and is helping to prepare a statement. He said yesterday there is a lot of opposition to the new policy.

"Everything I've seen in e-mails within NYCLA and outside of NYCLA -- everybody is against the current policy and would like to bring cell phones, laptops and BlackBerries into the courthouse" without having to seek specific authorization, Kanter said.

Crotty said the potential problem with freewheeling use of electronic devices was illustrated on June 29 during the sentencing of Bernard L. Madoff for a multibillion Ponzi scheme.

In the ceremonial courtroom on the ninth floor, U.S. marshals saw a woman holding up a device and trying to record the proceedings. The marshals seized the device and gave the woman a summons. Judge Denny Chin later issued an order that the recording of the sentencing be copied and preserved for the record, but that it be deleted from the device.

"This pointed out flaws in the system," Crotty said yesterday. "And there are still security concerns such as people photographing jurors or witnesses."

A bigger concern, the judge said, is that laptops "are relatively large packages that can contain explosives."

The court issued its interim order the same day as the Madoff sentencing, saying it was designed "to decrease congestion and the resulting delays in entering the Courthouse while the Court re-evaluates its policies regarding cell phones, laptops, PDAs and similar electronic devices."

Attorneys who regularly practice at the court made their displeasure known immediately and the bar groups went to work. But Crotty said the court is faced with security concerns it must address.

"What the bar has to appreciate is that we are just as sensitive as they are as to the convenience of electronic devices but the bar is singularly unsympathetic to our security concerns or the concerns of security committees," Crotty said.

More from the story:

Wendy H. Schwartz of Reed Smith plans to speak at the hearing next week as chair of the Federal Courts Committee for the New York City Bar.

"These types of devices are now so integral to the practice of law for attorneys both inside and outside the courthouse," she said. "They can make things go so much more smoothly."

Schwartz said she would also emphasize the need to "level the playing field" by allowing all lawyers to have the devices and that the Administrative Office of U.S. Courts has determined that electronic devices do not present a security issue. * * *

Kanter said the rule changes are a particular hindrance to solo and small-firm attorneys.

"It's a real burden on all attorneys, but especially attorneys with small firms," he said. "Sometimes, attorneys with small firms are in court all day and they need these devices -- and not just on client matters. We're talking about family emergencies and things like that."

Today the ILB received this tip:

Friday, an Indiana Supreme Court committee took up the issue of banning iPhones, cell phones, laptops, social network sites such as Twitter and Facebook, by jurors while they are deliberating a case.

I have been able to confirm that this was NOT the Committee on Rules of Practice and Procedure. A query for information was sent to the Court's public information officer earlier today. I expect to be posting more on this.

Courts - "5th Circuit Rules That Changes in Debtor Income Should Be Addressed in Chapter 13 Bankruptcies"

John Council has this lengthy story in the Texas Lawyer. A few quotes:

The 5th U.S. Circuit Court of Appeals has determined how "projected disposable income" is to be calculated in Chapter 13 bankruptcies, an important ruling that could mean debtors pay more or less to their unsecured creditors in some instances.

The case, Nowlin v. Peake, involves an issue of first impression in the 5th Circuit concerning a common problem in Chapter 13 bankruptcy proceedings: What happens when a debtor's level of disposable income changes during the 60-month payment plan period? The court's answer gives U.S. Bankruptcy Court judges and litigants more flexibility in dealing with that issue, several experts say. * * *

On July 17, the 5th Circuit affirmed the U.S. District Court ruling, noting that it has yet to interpret §1325(b)(1) in light of the changes made by Congress in the BAPCPA.

The 5th Circuit also noted in Nowlin that other circuit courts are split on how to handle "projected disposable income" calculations. The 8th and 10th U.S. Circuit Courts of Appeals found that the calculation of "disposable income" was a starting point, or presumption, for the projection of future income into the future. Their approaches allow for a debtor, a trustee or a creditor to present rebuttal evidence during the course of the bankruptcy to show that circumstances have changed and the figure should be modified to accurately reflect the debtor's finances going forward.

However, according to the 5th Circuit's opinion, the 9th U.S. Circuit Court of Appeals found that the definition of "disposable income" requires a mechanical approach. That court held that the definition of "projected disposable income" is bound to the new definition of "disposable income" found in §1325(b)(2). To arrive at what "projected disposable income" is, one takes the calculation mandated by §1325(b)(2) and does the math.

With Nowlin, the 5th Circuit joined the 8th and 10th Circuits in ruling that §1325(b)(2)'s definition of "disposable income" is a starting point for calculating the disposable-income figure, and that changes in a debtor's income should be taken into account.

"We join the Eighth and the Tenth Circuits in adopting a forward-looking interpretation of 'projected disposable income' in §1325(b)(1). It accounts for the relevant statutory language, including the phrases 'to be received in the applicable commitment period,' 'as of the effective date of the plan,' and 'will be applied to make payments,'" wrote 5th Circuit Judge Jennifer Elrod in an opinion joined by Judges Carolyn Dineen King and James Dennis.

"The position adopted by Nowlin and the Ninth Circuit fails to address this language, and overly emphasizes the modified definition of 'disposable income' without recognizing the independent significance of the word 'projected,'" Elrod wrote. "This word allows for calculation of future income and expenses based on present data, including evidence extrinsic to that used in the calculation of 'disposable income' under §1325(b)(2). Thus, any party could present such evidence of changed circumstances (e.g. finding or losing a job, a promotion, increased medical expenses, etc.), and the bankruptcy court could adjust projections accordingly."

Indiana Legislative Insight has the story in its subscription-only, July 27th issue. The following is quoted with permission:

Deborah Daniels of Krieg DeVault LLP, a
former top U.S. Department of Justice
official, files a federal lobby registration on
behalf of the Office of the Attorney General
effective July 15. The registration is under a
24-month contract that expires June 14, 2011
for a cost not to exceed $150,000.

The scope of services includes what you
might expect to find: general strategic advice
on the federal administrative and legislative
processes; regular liaison with the Hoosier
congressional delegation; communication
with federal agencies as needed and national
organizations as appropriate; seeking grants
from the government; and program
development assistance for OAG support of
the Indiana Criminal Justice Institute
(perhaps in the form of an educational
summit for prosecutors and law enforcement
and judicial system personnel), but there is
one other particularly intriguing component.

If you read the statutory framework for the
AG's Office, in I.C. 4-6-8-2, you will find
language calling upon the Attorney General
to make reasonable and appropriate
investigations or study of any existing or
proposed federal legislation when requested
by a member of the congressional delegation.
Attorney General Greg Zoeller (R) wants to
employ this mandate to allow his office to
have more input on and impact in federal
circles when congressional measures could
impact Indiana, and the Daniels contract will
mean a greater OAG outreach to the Indiana
delegation in this respect.

His office has recently responded to requests
for details on how proposed federal changes
in the OAG-administered tobacco settlement
regulatory structure and payment process
might affect Indiana, and General Zoeller
sees an opportunity to allow the State to
become a bit more involved earlier in the
legislative process in an informal manner,
and not through a process as formal as that
which, for example, generates a stilted,
legalistic AG Official Opinion. * * *

The former U.S. Attorney for the Southern District of Indiana
knows the process, many of the people, and bringing more
grant funding to the Office of the Attorney General –
particularly for the perpetually troubled Indiana Criminal
Justice Institute – can prove critical at a time when ICJI is
finding its funding sources dry up and – as we were first to tell
you, early last month – continues its dismal track record of a
lack of timely compensation to claimants of violent crimes.

Courts - Votes to assure Dawn Johnsen confirmation may be in hand

So reports Andy Graham today in this story ($$) in the Bloomington Herald-Times. Some quotes:

Sources indicated Friday that there are likely enough votes now pledged among United States senators to confirm Dawn Johnsen, the Indiana University law professor nominated to serve as the Obama administration’s assistant attorney general for the Office of Legal Counsel. But logistical hurdles are still delaying a floor vote.

Johnsen has refused comment on the situation, according to the wishes of President Barack Obama’s administration, until her nomination is resolved.

Both Indiana senators, Republican Richard Lugar and Democrat Evan Bayh, support Johnsen’s nomination. Andy Fisher, Lugar’s press secretary, wouldn’t confirm or deny that Johnsen now has sufficient support. He said it’s a matter of waiting to see when Senate Majority Leader Harry Reid, D-Nev., schedules a vote. * * *

“Two senators (Ted Kennedy, D-Mass., and Robert Byrd, D-W.Va.) have been ill and unavailable for votes, which is perhaps a factor.” * * *

There are now 60 members in the Democratic Senate caucus after Al Franken was sworn in July 8 as the junior senator from Minnesota, but a few Democrats have indicated they might not vote for Johnsen, while a few Republicans might join Lugar in voting for her.

Fisher said the crowded Senate calendar is likely a factor in delaying some nomination votes, too. He noted that Judge David Hamilton, nominated by Obama for the U.S. Seventh District Court of Appeals, is another Hoosier awaiting confirmation, but that the Senate was focused on expediting the U.S. Supreme Court nomination of Sonia Sotomayor.

Judge Hamilton is the brother of John Hamilton, Johnsen’s husband and a Monroe County Community School Corp. board member. All are awaiting pending Senate action in arranging their lives. John Hamilton, Johnsen and their children have gone back and forth between Bloomington and Washington, D.C., in recent months.

“We still are waiting for the Senate to act, and I’m continuing to do my best to serve on the school board in the meantime,” said John Hamilton, who made Tuesday’s MCCSC board meeting after missing the previous one. “My intention is to serve as long as I can reasonably do so, to make every meeting I can.

Courts - "Indiana and Idaho currently have no female Supreme Court justices"

That is a quote from this story July 19th by Sarah McCann and Tracey D. Samuelson of The Christian Science Monitor, headed "State of diversity on the courts: Sonia Sotomayor’s nomination draws focus to the gains of minority and female judges nationwide."

Courts - Another view on Melendez-Diaz v. Massachusetts

Robert McCartney, Metro Columnist for the Washington Post, had a column Thursday on the impact of the SCOTUS decision in Melendez-Diaz in Virginia, where the Governor has called a speicial session to deal with it, and other jurisdictions:

By contrast, the impact has been minimal in the District and Maryland. The District has been making witnesses available since 2006, and Maryland has a law enabling prosecutors to invite the defense to effectively accept the use of documents alone before the trial starts.

The impact could mushroom, though, and affect more jurisdictions and more kinds of cases. Two Fairfax judges have ruled in DWI cases that the prosecutor had to make available not only the operator who performed the breath test but also the technician who calibrated the machine or certified it as part of routine maintenance every six months. Defense attorneys are also hoping that they could start requiring police to make available the technicians who calibrate radar guns or other equipment used to catch speeders.

Ind. Courts - More on "Judge rules against Westfield on road fees"

Westfield is fighting a Hamilton County court ruling that said the way the city applied a road-impact fee ordinance violated state law. * * *

The city is arguing that the ruling was incorrect and a trial should be held to determine the outcome of the case.

If Hughes upholds the ruling, Westfield might have to refund some of the $3 million it collected in road-impact fees under that ordinance. The city would likely appeal to the Indiana Court of Appeals.

In the lawsuit, attorneys for a Westfield businessman argued that the city should not have assessed impact fees on his business, because it could not demonstrate that the business would increase traffic in the area.

In the ruling, the court ordered Westfield officials to provide detailed information on businesses, developers and residents who have already paid road-impact fees.

A hearing on Westfield's claim is set for 8:30 a.m. Wednesday in Hamilton Superior Court 3, but Steve Cook, the plaintiff's attorney, said that could change.

Cook is still waiting for the city to provide information, including a list of those who might be affected, so the hearing could be postponed.

Westfield attorney Brian Zaiger said in an e-mail that next week's hearing is still on, but didn't comment further.

Some are eagerly awaiting that information to see if they could get a refund.

Environment - "Electronics Industry Sues to Block Recycling Law"

From the NYT City Room Blog yesterday, an item by Jennifer Lee that begins:

Industry groups filed a lawsuit on Friday to block New York City’s new electronics recycling law from taking effect next Friday.

The law, passed in March 2008 by the City Council and finalized in regulations that the Department of Sanitation issued in April, requires manufacturers to take back their electronics, and provide pick-up service for items weighing 15 pounds or more. Starting in 2010, consumers will face a $100 fine for throwing old computers, televisions and other gadgets into the trash. Manufacturers who fail to recycle merchandise returned to them could be fined for each violation.

The lawsuit, which was jointly filed by the Consumer Electronics Association and the Information Technology Industry Council in United States District Court in Manhattan, challenges numerous aspects of the law and regulations. The suit argues, among other things, that the law would improperly affect products made before the law took effect, that the pick-up requirement would be overly burdensome, and that the law would force companies to collect products that they may not have made. The suit also raises constitutional issues, asserting that the City Council’s action amounts to an illegal effort to regulate interstate commerce.

“This is unique in the world, this series of requirements that New York is trying to impose,” said Rick Goss, vice president of environment and sustainability for the Information Technology Industry Council.

Parker Brugge, vice president of environmental affairs and energy sustainability for the Consumer Electronics Association, said, “It could force a number of companies out of the New York City marketplace or into bankruptcy.”

The two groups have hired Beveridge and Diamond, a law firm that specializes in environmental cases, to handle the lawsuit.

However, others note that this law is similar to those passed in other states, as electronics recycling has become a national concern. Bill de Blasio, a Brooklyn councilman who is running for public advocate and sponsored the legislation, countered, “Our electronics recycling law is a national model, and reflects the high standards that have already been set in jurisdictions such as Minnesota and Indiana.”

As noted in this July 23rd entry, the Supreme Court has granted transfer to the case of Indianapolis Marion County Pub. Library v. Charier Clark & Linard, PC. Vic Ryckaert reports today in the Indianapolis Star:

The Indianapolis-Marion County Public Library's $25 million negligence suit against two companies involved in the troubled Central Library renovation and expansion project will get a hearing before the Indiana Supreme Court.

The court on Thursday announced it will hear the library's claims against engineers Thornton Tomasetti and inspectors Charlier-Clark & Linard in connection with $50 million in cost overruns stemming from construction defects in the main library's underground garage. * * *

In April, a Boone County jury found in favor of Thornton Tomasetti on the library's fraud accusations after a five-week trial. That verdict means taxpayers could end up footing the bill for a portion of the overruns and for more than $700,000 in fees.

The Boone County verdict was not appealed. Instead, the library's lawyers asked the Supreme Court to consider a negligence claim that Special Judge Matthew Kincaid had dismissed months before the trial began. The Indiana Court of Appeals upheld Kincaid's ruling in February.

No date for oral arguments before the Supreme Court has been scheduled. If the court reinstates any of the claims, the case could head for a new trial.

Library officials have said they hope to hold Thornton Tomasetti and Charlier-Clark & Linard responsible for mistakes and contractual breaches that led to the problems and additional costs.

Courts - Thorough look at federal appellate practice

Over the past week, law prof Eugene Volohk has excerpted passages from the Mayer Brown's Federal Appellate Practice treatise, commented on them, and invited reader responses. Here are the entries, on one page. All are interesting, but of particular interest to 7th Circuit practitioners may be "Judicial Attitudes Towards Amicus Briefs."

Friday, July 24, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

In Cimarron Oil Corporation v. Howard Energy Corporation, a 14-page opinion, the issue is whether the Cimarron lease conveyed the right to invade the coal seams to produce coal bed methane gas (“CBM”) from the coal seams underlying the real property of the Hardimans. Judges Bailey writes:

Cimarron Oil presents the issue of whether a lease dated October 1, 1976, whereby the Hardimans granted Cimarron Oil’s predecessor the right to drill for and produce oil and gas, includes the exclusive right to drill for and produce CBM. * * *

The parties have agreed that neither contemplated in 1976 that technological advances would permit production of CBM for commercial gain. Accordingly, there was no explicit written expression of intent to either grant or reserve the right to drill for and produce CBM. We are asked by the parties to determine presumed intent as a matter of law. * * *

For the most part, the decisions of other jurisdictions have avoided a flat declaration that CBM is either “coal” or “gas.” Here, the trial court essentially followed the so-called “eastern rule,” that is, CBM is a component of coal, and ultimately determined that, because public policy dictates optimal mining safety, CBM production and coal mining are best left in the control of a single entity. Cimarron now urges our adoption of the so-called “western rule,” that is, the holder of a broadly-defined gas and oil estate may have rights to CBM, which is a form of gas. Regardless of the application of the “eastern rule” or “western rule,” the various cases have in common the primary focus on intent, and most refuse to recognize the silent conveyance of a mineral interest in a deed or lease, construed as of the date of its execution.

Focusing upon the contract language used in this case, it is clear that there was no contemplation of profitable CBM production. The gas estate owner was not granted permission to invade the coal seam. * * *

We do not find that the adoption of a regional rule is necessary to disposition of this particular case, where lack of intent to convey CBM rights to Cimarron’s predecessor is apparent. That said, we agree with the trial court that public policy would militate toward considering CBM to be part of the coal bed. CBM is derivative of the coal and, traditionally, coal mining operations have dealt with removing CBM with miner safety as the foremost concern. Public safety would be disserved by pitting the miner who needs to dissipate CBM to prevent explosions against the gas estate owner whose financial resource is being depleted. Nevertheless, it is within the province of the Legislature, to which we defer, to make policy decisions.

The Cimarron lease does not convey a right to the gas estate holder to invade the coal seams to produce CBM. The Hardimans retained the rights to CBM production, which they conveyed to Howard Oil. The trial court properly concluded that Howard Oil, as opposed to Cimarron Oil, could produce CBM on the subject property. Affirmed.

Using Smith and related cases as our guide, we determine that imposition of the enhanced fifty-year sentence for child molestation by sexual intercourse and the imposition of consecutive sentences are inappropriate in light of the nature of the offenses and the character of the offender. Therefore, we determine that the thirty-year sentence for molestation by sexual intercourse is appropriate. However, based upon Reyes’ particular psychological abuse of the victim, we do not consider the imposition of consecutive sentences to be inappropriate. Accordingly, we reverse and remand for the imposition of an aggregate sentence of ninety years.

NFP civil opinions today (2):

Donna Demko v. Jeffrey P. Demko (NFP) - "The parties agree the trial court’s findings regarding Donna’s income and M.D.’s uncovered college expenses are erroneous, and our review of the limited record before us reveals the evidence presented does not support the trial court’s income calculation and does support the parties’ agreed-upon college expense amount of $5,930.00. Accordingly, we reverse and remand for the court to re-determine Donna’s weekly income and to enter M.D.’s total uncovered college expenses as $5,930.00. Reversed and remanded."

Courts - "Specter Proposes Return to Prior Pleading Standard"

Updating this ILB entry from July 20th on the end of notice pleading as we know it, at least in federal court, David Ingram of The National Law Journal has a report today that begins:

Congress is preparing to wade into the growing debate over the pleading standard for civil lawsuits, after two recent Supreme Court decisions effectively upended long-standing precedent.

Sen. Arlen Specter, D-Pa., filed legislation Wednesday designed to return the standard to what it was prior to 2007, when the Court handed down its ruling in Bell Atlantic Corp. v. Twombly. That case and another -- Ashcroft v. Iqbal from the most recent term -- have raised the standard that pleaders must meet to avoid having their cases quickly tossed.

Specter, in remarks prepared for the Senate floor, accused the Court's majorities of making an end run around precedent with the two recent cases.

"The effect of the Court's actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries," Specter said. "I think that is an especially unwelcome development at a time when, with the litigating resources of our executive-branch and administrative agencies stretched thin, the enforcement of federal antitrust, consumer protection, civil rights and other laws that benefit the public will fall increasingly to private litigants."

Three months into the criminal trial of socialite Brooke Astor's son, Anthony Marshall, and the lawyer he hired who allegedly helped him loot his mother's estate, the presiding judge has cleared the way for a trusts and estate expert to testify for the prosecution.

Alexander D. Forger, the former chairman of Milbank Tweed Hadley McCloy, can give expert testimony on the "patterns" of Astor's wills and codicils and the "professional practice standards" for trusts and estates attorneys, Acting Supreme Court Justice A. Kirke Bartley Jr. ruled Wednesday from the bench.

However, the judge barred Forger from testifying on issues that could prove critical to the prosecution's case: whether Henry Christensen III, who represented Astor for more than 20 years, and G. Warren Whitaker, the attorney who drafted a hotly disputed Jan. 12, 2004, codicil to the socialite's 2002 will, violated ethical standards.

Read the submissions of the prosecution and Marshall regarding Forger's appearance.

Blade entered the house after the attack, slashed Mary Voland across the neck and helped hide the gun used in the shooting, police said. Mary Voland, 77, survived the attack.

Bennie Reed has been charged as an adult with murder and other felonies.

In her ruling, Stewart said that if convicted, Blade Reed would need a longer prison sentence than he would get in the juvenile justice system.

"The evidence taken as whole has failed to show that the best interests of the community are served by maintaining the child in the juvenile system," Stewart wrote. She said adult prison would keep him locked up longer and "would prevent the child from returning to his and Ms. Voland's neighborhood when he is still in his teens or early adulthood, a time when his immaturity may cause him to pose more of a threat than later in life."

An 11-year-old charged with murder was tried as an adult in Starke County in the early 1920s but was not convicted. Glick said that despite a brief increase in waivers to adult court more than a decade ago, it's unusual for children younger than 16 to be transferred from the juvenile justice system.

About 50 juveniles are in Indiana adult prisons. The youngest ever held in an adult state prison was 14, Department of Correction spokesman Doug Garrison said.

The juvenile inmates are kept separate from adults at a building at the Wabash Valley Correctional Facility. There, they receive mandatory GED training, drug and anger management counseling and other services.

Ind. Decisions - "Court reverses property tax verdict"

The July 23rd COA opinion in City of Hammond v. Graoch Associates #52, L.P., d/b/a River Park Apartments (ILB summary here - 2nd decision) is the subject of a story today in the Gary Post Tribune, reported by Christin Nance Lazerus:

The former owner of the Hammond's River Park apartments will be forced to pay 2005 property taxes, after the Indiana Court of Appeals reversed a lower court decision on Thursday.

Hammond condemned the complex in November 2005, since it was viewed as a drain on city resources. Police were dispatched to the apartments often and the Health Department closed several buildings for alleged health violations.

The city agreed to prorate the 2005 taxes for complex owner Graoch Associates #52 L.P. based on the 2004 bill. The city received a $259,140.92 credit and agreed to pay the bill when it came due.

After the condemnation was complete and the $14 million in compensation was paid, the Court of Appeals decided Southtown Properties, Inc. v. City of Fort Wayne.

Graoch filed a lawsuit, arguing that -- based on the Southtown case -- it owed no property taxes for 2005, and sought to recoup the money credited to the city.

Graoch obtained a declaratory judgment against the Lake County Assessor, Treasurer, and Auditor that Graoch did not owe 2005 property taxes. The trial court also ordered judgment against the city, finding the money credited for payment of taxes had to be returned.

In its reversal, the Court of Appeals decided that the Southtown case does not relieve property owners of liability for property tax if condemnation of the property was complete before Southtown was decided.

"Retroactive application of Southtown in this case would impair an existing contract and vested rights," the court wrote.

Thursday, July 23, 2009

He continued: “I have never encountered a case similar to this one,” he said. “It is very much out of the ordinary to have someone urinating on someone else's chair.”

Linsen Li has the story today in the Louisville Courier Journal and it is already showing up in papers across the country. More from the story:

A custodian at the Clark County Government Building faces charges of attempted battery by body waste for allegedly urinating on a court reporter's chair.

Stephen L. Thompson, 58, was arrested Wednesday on two counts of the class D felony, according to court documents.

Thompson was arrested when he arrived for work and later posted bail, according to Jeremy Mull, Clark County's chief deputy prosecutor.

The records say the incident was caught on video surveillance.

A probable cause affidavit filed in Clark County Superior Court said an employee with the county Circuit Court discovered a “wet substance” on her chair upon arriving at work July 15. Following that, a hidden surveillance camera was installed.

When the employee again found her chair soiled on Wednesday, video showed Thompson had “purposefully urinated” on the chair, according to the affidavit.

Both the prosecutor's office and the sheriff declined to release the video.

Ind. Decisions - COA decision from yesterday just posted

K.F. appeals an order granting the petition, filed by St. Vincent Hospital and Health Care Center d/b/a St. Vincent Stress Center (“St. Vincent”), for her involuntary regular commitment. K.F. asserts that there was insufficient evidence to establish that she was gravely disabled. We reverse. * * *

In light of the above, we cannot say that St. Vincent presented clear and convincing evidence that K.F., as a result of mental illness, was in danger of coming to harm because she had a substantial impairment or an obvious deterioration of judgment, reasoning, or behavior resulting in the inability to function independently. While K.F. may have made some unusual decisions and/or displayed certain behaviors characteristic of a person with bipolar disorder, “her conduct presents too slender a thread to support an involuntary commitment.” Commitment of J.B. v. Midtown Mental Health Ctr., 581 N.E.2d 448, 452 (Ind. Ct. App. 1991) (reversing involuntary commitment where respondent, who was suffering from alcoholism and had been arrested for driving while intoxicated, public intoxication, and public indecency, ran away into traffic and hitchhiked to avoid her mother); see also In re Commitment of Steinberg, 821 N.E.2d 385, 389 (Ind. Ct. App. 2004) (reversing involuntary commitment where respondent went about activities of daily living while hospitalized and where he maintained an apartment with a roommate), trans. denied. Therefore, we reverse.

Reynaldo A. Griffin v. State - 71A03-0805-CR-260. Here is the May 9, 2009 ILB summary of the 2-1 opinion, where the question was - what is "brief"? From the opinion:

Griffin was arrested for possession of cocaine within 1,000 feet of school property. Griffin pled a defense pursuant to Ind. Code § 35-48-4-16 that he was “only briefly present near the school property and that no children were present.” Griffin did not testify at trial, and no defense witness testified as to the defense. Officer Walker testified that he had watched Griffin for some time before stopping him.

Government agents created a
fictitious online personality named “Jennifer Sanchez,”
who represented herself as a 13-year-old girl. Matthew
Hensley, using multiple online personas, attempted to
cajole Jennifer into having sex with him. A meeting
place was arranged. However, while en route, Hensley
noticed law enforcement near the meeting place and left
the scene. Officers arrested Hensley the next day. A jury convicted him of attempting to solicit a minor for sex in
violation of 18 U.S.C. § 2422(b). The district court sentenced
him to 125 months’ imprisonment. Hensley
appeals both his conviction and sentence. We affirm.

The sting that caught Matthew Hensley was part of a
wider law-enforcement effort targeting Internet sexual
predators. The operation used personnel from several
state and federal agencies, including the Immigration
and Customs Enforcement (“ICE”) and the Secret Service.
The plan was to first entice sexual predators over the
Internet using agents passing themselves off as minors,
and then to nab them when they arrived at Will Park
in Valparaiso, the spot where the fictitious minors would
tell the perpetrators to meet them for the trysts. The takedowns—
approximately ten to twelve of them—were all
scheduled to occur on the same day, August 18, 2006,
and involved well over 100 law enforcement officers.
ICE agents Demetrius Flowers and Melissa Chan participated
in the operation. They posed as a thirteen-yearold
girl named “Jennifer Sanchez” and created an online
Yahoo profile for her with the screen name jen_indy_13
(hereinafter “Jen”). Beginning August 7, 2006, Agent
Flowers, under the guise of that screen name, visited
the Indiana section of several Yahoo chat rooms.

Ind. Decisions - Court of Appeals issues 6 today (and 14 NFP)

Appellant-respondent Suzanne Eads appeals the trial court's grant of summary judgment in favor of appellee-petitioner Community Hospital (the Hospital). Eads argues that the trial court erred by concluding that (1) the Journey's Account Statute did not apply to her case and (2) her medical malpractice claim was untimely filed. Finding no error, we affirm.

On August 15, 2004, Eads was a patient at the Hospital, having received treatment for an ankle injury. As part of that treatment, Eads's ankle was placed in a cast. Following her treatment, she requested a wheelchair to exit the Hospital, but Hospital personnel refused her request. Instead, a Hospital employee told her that “she could leave the [H]ospital on crutches.” As Eads was exiting the Hospital, she passed through the foyer area leading to the garage, where she fell. * * *

It is undisputed that Eads filed her malpractice claim with the IDOI after the applicable two-year statute of limitations had run. To rescue her claim, Eads directs our attention to the Journey's Account Statute. * * * I.C. § 34-11-8-1. The purpose of the Journey's Account Statute is to preserve the right of a diligent suitor to pursue a judgment on the merits. * * *

[I]f Eads's malpractice claim is to be rescued by the Journey's Account Statute, she must establish, among other things, that her malpractice claim is a continuation of the Negligence Complaint. * * *

Although it is true that the factual predicate of and parties involved in Eads's medical malpractice claim are identical to those involved in the Negligence Complaint, the actual claim—the source of the alleged liability—is wholly different. There is a basic distinction between a common law claim of negligence and the statutory medical malpractice regime. Thus, whatever the similarities may be, there is a fundamental difference that prevents the application of the Journey's Account Statute. To hold otherwise would permit plaintiffs an untimely second bite at the apple, and we do not believe that to be the intent of the legislature in crafting the statute.

Inasmuch as we have found that the medical malpractice claim is not a continuation of the Negligence Complaint, the Journey's Account Statute does not apply. Therefore, we are left with a medical malpractice claim that was untimely filed with the IDOI outside the statute of limitations, and we find that the trial court properly granted summary judgment in the Hospital's favor. The judgment of the trial court is affirmed.

I would reverse the Circuit Court's grant of summary judgment and remand this claim to the Circuit Court with instructions that the claim be returned to the IDOI for further proceedings by the medical review panel.

In 2005, the City of Hammond condemned an apartment complex owned by Graoch Associates #52 L.P. The City and Graoch agreed to prorate Graoch's 2005 property taxes based on the 2004 bill. The City received a credit and agreed to pay Graoch's tax bill when it came due. After the condemnation was complete and the compensation was paid, we decided Southtown Properties, Inc. v. City of Fort Wayne, 840 N.E.2d 393 (Ind. Ct. App. 2006), trans. denied 855 N.E.2d 1010 (Ind. 2006). Graoch believed that, pursuant to Southtown, it owed no property taxes for 2005, and therefore sought to recoup the money credited to the City. Graoch obtained a declaratory judgment against the Lake County Assessor, Treasurer, and Auditor (collectively, “Lake County”) that Graoch did not owe 2005 property taxes. The trial court also ordered judgment against the City, finding the money credited for payment of taxes had to be returned under theories of mistake, unjust enrichment, failure of consideration, and money had and received.

We conclude the trial court erred by applying Southtown to this case. Because Southtown does not apply, Graoch does owe property taxes for 2005. We reverse the judgment of the trial court and remand for a hearing on attorney fees and costs. * * *

For the foregoing reasons, we conclude Southtown does not relieve property owners of liability for property tax if condemnation of the property was complete before Southtown was decided. Therefore, we reverse the trial court's judgment in full. In addition, it appears the parties' settlement agreement, the agreed order in the condemnation case, and/or the Proration Agreement authorize an award of attorney fees and costs for the prevailing party in a legal action to interpret or enforce those agreements. We remand for a hearing on the issue of attorney fees and costs.

Appellant/Plaintiff/Counterclaim Defendant Gregory Mills appeals the trial court's award of summary judgment against him in his action against Appellee/Defendant/Counterclaimant Dean Kimbley for nuisance, common law and criminal trespass, and intentional infliction of emotional distress (“IIED”). In addition, Mills appeals the trial court's award of summary judgment in favor of Kimbley in his counterclaim against Mills for invasion of privacy. Upon appeal, Mills argues that there is a genuine issue of material fact with respect to each of the above claims, precluding summary judgment. * * *

Having concluded that the trial court erred in entering summary judgment with respect to Mills's trespass claims and Kimbley's intrusion counterclaim, and that Mills's challenges to the trial court's summary judgment on his nuisance and IIED claims are waived, we affirm in part, reverse in part, and remand to the trial court for a trial on Mills's trespass claims and Kimbley's intrusion counterclaim.

John Edrington v. State of Indiana - "John Edrington appeals the sentence imposed after his plea of guilty to two counts of child molesting as Class A felonies. He argues the trial court considered invalid or unsupported aggravators when it enhanced his sentence five years beyond the presumptive thirty years and his sentence is inappropriate based on his character and the nature of his offense. We affirm."

Christopher Jenkins v. State of Indiana - "Appellant/Defendant Christopher Jenkins appeals from his convictions for Class C felony Cocaine Possession and Class D felony Methamphetamine Possession, the trial court's restitution order, and the sentence he received. We affirm in part and reverse in part."

Luis Duran brings this interlocutory appeal following the trial court‟s denial of his motion to suppress evidence seized during a search of his apartment. On appeal, Duran raises one issue, which we restate as whether the trial court properly concluded that the police officers‟ entry into Duran‟s apartment did not violate the Fourth Amendment of the United States Constitution or Article I, Section 11, of the Indiana Constitution. Concluding the trial court‟s decision was not improper, we affirm. * * *

BAILEY, J., concurs.
DARDEN, J., dissents with separate opinion. [which begins and concludes] I respectfully dissent. As a starting point, I think it critical to remember that this began as a very late-night effort to serve a routine arrest warrant for Nelson Hernandez, who was sought on a charge of auto theft (not a crime of violence or a drug offense), and that it is undisputed that there was no “hot pursuit” or emergency here. Further, it appears from the record that Hernandez was relatively well known in the community to the police. The officers knew that in the course of his alleged crime, Hernandez had suffered a leg injury in a crash and was only recently released from the hospital -- wearing a full cast and mobile only with the use of two crutches. The record contains no evidence of attempts by the officers to learn the name of Hernandez' aunt, to help narrow the location of her residence. Moreover, they knew that no matter where they located Hernandez, it was going to be in the residence of a third party in that building. * * *

I appreciate the majority's careful attention to precedent in reaching the result it has. However, I am deeply troubled by testimony indicating that police officers believe that when the resident of a dwelling does not open a door, after having simply heard the announcement that “police” are outside, the officers may kick in that door to gain entry. My reading of the facts presented to the trial court in this case lead me to strongly believe that Duran's motion to suppress should have been granted.[emphasis in the original]

Roger Kinzie v. Brenda Montel (NFP) - "We acknowledge that Roger is shouldering the lion’s share of the financial burden of caring for their children. This situation is a difficult one for all involved. Brenda is simply unable to earn a sufficient income to support the children financially. Unless and until that fact changes, everyone will have to manage as best as they can. Under these circumstances, we do not find that the trial court’s decision to decline to set aside a portion of the equalizing payment for child support was clearly erroneous."

Law - More on "Amazon's Kindle to Sell Law Books" and the implications

Updating this ILB entry from last Sunday, which ended with this quote:

Already, we’ve learned that they’re not really like books, in that once we’re finished reading them, we can’t resell or even donate them. But now we learn that all sales may not even be final.

Today Geoffrey A. Fowler of the WSJ has a story expanding on that point. It is titled: "Buyer's E-Morse: 'Owning' Digital Books: Purchasing Electronic Tomes Online Gives Readers Fewer Legal Rights to Share and Resell Than Hard-Copy Customers Enjoy."

Referring to the incident where "Amazon.com Inc. used its wireless technology to reach into customers' Kindle e-readers and deleted some e-books written by George Orwell," Fowler writes:

Regardless, the incident raises some difficult questions about what it means to "own" books in the digital age. The same legal conundrums came up with music. Consumers raised on sharing records and CDs suddenly found themselves challenged in court by music companies for violating intellectual-property rights when doing the same thing through computers. Books have a more entrenched culture of sharing -- libraries exist for lending dog-eared volumes -- raising potentially knottier legal issues. Some experts say that, barring a creative industry solution, these matters can only be remedied by passing new laws that clearly define digital ownership. * * *

In legal terms at least, buying an electronic book is nothing like buying an old-fashioned paper book. A copyright concept known as the "first sale" doctrine allows the owner of a traditional book to do pretty much anything with it, including reselling it or lending it to a friend.

Owning an e-book is more akin to licensing a piece of software: access comes with fine-print terms of service, and often digital rights management software to ensure that you abide by the rules. E-books bought from stores run by Amazon, Sony Corp. and Barnes & Noble Inc. often work only on those company's own designated devices.

Amazon's always-connected Kindle Whispernet and Google Inc.'s Web-based book search function both treat books like a service, which has its advantages. Readers using them can access a wide range of books anywhere, authors can update or correct their work, and an intelligent network can keep track of bookmarks and notes.

But that is different from analog-era ownership. Over time, "people are going to get uncomfortable with applying this software licensing model to all sorts of things in their lives that they used to just own," says Cindy Cohn, the Legal Director for the Electronic Frontier Foundation. "A license is better for companies, but not necessarily for you." * * *

Real books can be shared with a friend or sold, but e-books with digital rights management software cannot. The number of devices that can play a single e-book license varies from one publisher to the next, and often confuses consumers.

Ind. Decisions - Interesting probate case in St. Joseph Circuit Court

In a story headed "New executor must handle Gabriele will," Alicia Gallegos reports today in the South Bend Tribune:

SOUTH BEND — A judge has ordered a new administrator be named to handle Philip Gabriele's will, instead of the late doctor's friend, as originally written in his now-contested will.

At a long hearing Wednesday — involving five lawyers and more to come — St. Joseph Circuit Court Judge Michael Gotsch agreed the complex nature of the case means a special administrator is warranted.

Susan Manuszak, the Gabrieles' purported best friend, had been in charge of executing the will, but attorneys for Gabriele's brother-in-law argued her role in the case may prevent her from being impartial. Manuszak was left 75 percent of the Gabriele estate, according to court documents.

Jon Alex Dawson, brother of Marcella Gabriele, filed the civil lawsuit last week, alleging Gabriele's will was improperly executed. He claims that the doctor was depressed and penned the document while under the "undue influence" of Manuszak.

The will was dated just four days before Gabriele committed suicide and his wife was shot to death.

Before the case can move forward, attorneys for the estate from Baker and Daniels said Wednesday they need more time to review the Gabrieles' assets and evaluate his total properties.

Gotsch gave the group 65 days to finish the review and produce the findings.

Gotsch also denied a motion by Dawsons' attorneys, David Wemhoff and Timothy Kalamaros, to disqualify Baker and Daniels attorneys from the case.

Dawson's attorneys say Baker and Daniels have a conflict of interest because they represented the Gabrieles in the their criminal case.

They also contend that because the Gabrieles owed the firm money for their services, they are also creditors in the estate case. Manuszak being involved in the case also means Bakers and Daniels cannot ethically represent both, they said.

But Baker and Daniels attorney Carl Greci argued the firm does not individually represent Manuszak and she would have to obtain her own representation in the case. Baker and Daniels are representing only the estate, they said.

Gotsch denied the motion for disqualification, saying there was no credible evidence of a conflict of interest. He acknowledged, however, he could revisit the issue if it comes back up during the estate case.

Courts - More on "Va. Special Session Called to Address Crime Lab Testimony Ruling"

Updating yesterday's ILB entry, a story today by Tom Jackman and Rosalind S. Helderman of the Washington Post implies that there may be no "quick fix." Some quotes:

Changing laws about trial testimony will not alleviate the crisis that prosecutors foresee, officials said Wednesday. Defense lawyers have begun demanding that lab analysts or breath-test technicians appear in court to explain their findings, they said. Responding to the increased demand for experts will probably take years, be expensive and require solutions that haven't been devised, those involved said.

"The heavy lifting, in the long haul, is going to have to come from administrative changes to the criminal justice system," said state Del. Stephen C. Shannon (D-Fairfax), a candidate for attorney general.

"I don't think there are going to be any quick and easy answers," said Pete Marone, director of Virginia's Department of Forensic Science, which performs nearly all of the lab testing and breathalyzer calibrations in the state.

Law - "Personal Jurisdiction Caught in a Web"

The New York Law Journal published this interesting article yesterday, written by Stephen M. Kramarsky. A quote:

Some of the thorniest questions in technology litigation arise when traditional notions of limited personal jurisdiction clash with the global reach of the Internet. In the context of intellectual property infringement -- where the concept of "injury" can be complex -- these issues become even more difficult.

New York's long-arm jurisdiction statute, for example, includes a multi-part test for personal jurisdiction over non-residents that can be a challenge to apply even in relatively straightforward cases. It is thus no surprise that courts have struggled to come up with a consistent set of standards applicable to claims of infringement over the Internet.

What is surprising is how stark the differences in interpretation can be, and how difficult the cases become at the margins. Two recent decisions from the Southern District of New York make this clear. Both are well-reasoned, carefully considered opinions from judges sitting on the same bench, but they reflect radically different views of the scope of New York's jurisdiction over foreign infringers and reach diametrically opposite results.

Ind. Decisions - "State CFO hog permit upheld"

The Court of Appeals decision July 20th in the case of Jennings Water v. Office of Environmental Adjudication (ILB summary here - 4th case) was the subject of a story July 21st in the Semour / Jackson County Tribune. Aubrey Woods reported:

The appeals process for a water utility fighting a federal discharge permit for an 8,000-head confined feeding operation near Reddington may have reached an end Monday.

“Miss Lykins is glad she won and knew all along that the permitting process was done in accordance with the laws of the state of Indiana,” Seymour attorney Joseph A. Miller said of his client, Talara Lykins of Bartholomew County.

Miller was referring to a decision by the Indiana Court of Appeals, released Monday, that upheld a Marion Superior Court decision issued April 4, 2008, in the case of Jennings Water Inc. v. Lykins, the state Office of Environmental Adjudication and the commissioner of the Indiana Department of Environmental Management.

The appeals court decision upheld an earlier ruling by the Marion Superior Court to uphold a decision by the state Office of Environmental Adjudication, which supported IDEM’s Sept. 13, 2005, issuance of a permit to Lykins for the hog operation.

Jennings Water originally appealed IDEM’s decision, alleging it would endanger and contaminate the company’s well water field about a mile from Lykins’ proposed operation.

The utility also continued to appeal later decisions upholding IDEM’s original decision to allow Lykins to obtain a permit.

In August 2006, Indiana Chief Environmental Law Judge Mary L. Davidsen denied the utility’s appeal of IDEM’s decision, finding the water company had not demonstrated with substantial evidence that approval of Lykins’ operation was in violation of any applicable rule or statute. * * *

Monday’s decision doesn’t mean Lykins can or will begin building a hog operation in Redding Township any time soon, however.

On June 12, Special Judge Andrea McCord of Lawrence Circuit Court reversed Jackson County Board of Zoning Appeals’ October 2005 decision to grant Lykins a special exception for the hog farm.

McCord wrote in her ruling that the BZA violated the Indiana Open Door Law and that the record showed insufficient evidence for its ruling during an Oct. 11, 2005, meeting in Vallonia.

Lykins had 30 days to appeal McCord’s decision, but she did not, Miller said, leaving her just one route — reapplying for zoning approval.

Miller said Monday he did not know whether Lykins planned to file again for the special exception.

Respondent was admitted to practice law in Indiana and in Kentucky. On April 23, 2009, the Supreme Court of Kentucky found Respondent's conduct violated that jurisdiction's rules of professional conduct. For this misconduct, Respondent was disbarred from the practice of law in Kentucky. Respondent is already under reciprocal suspension in Indiana under an order entered on February 29, 2008, in Cause No. 98S00-0710-DI-387 based on an earlier suspension in Kentucky.

The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state.

Being duly advised, the Court enters this order of reciprocal discipline suspending Respondent from the practice of law in this state. As noted, Respondent is already under a prior order of reciprocal suspension. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent.

If Respondent is reinstated to practice in the foreign jurisdiction, Respondent may file a "Motion for Reinstatement," attaching documents demonstrating such reinstatement, requesting this Court to reinstate Respondent to the practice of law in Indiana. However, regardless of Respondent's date of reinstatement in the foreign jurisdiction, Respondent's suspension in this state shall not be lifted until Respondent has been suspended at least as long as Respondent was suspended in the foreign jurisdiction. Respondent's motion shall state the length of time Respondent was suspended in the foreign jurisdiction and the date on which the length of Respondent's Indiana suspension equals the length of Respondent's foreign suspension.

INDIANAPOLIS – While foreclosures are increasingly causing concern for Hoosier families, Indiana Attorney General Greg Zoeller announced details of a collaborative foreclosure prevention effort between multiple state agencies and each branch of state government. The announcement was made today at the Indiana Government Center as nearly 100 government attorneys were being trained in foreclosure law.

Many of the lawyers expect to volunteer their time as pro bono legal representatives to homeowners in foreclosure-settlement conferences. A settlement conference is a negotiation meeting between lender and borrower to settle on new mortgage-loan terms and is a critical step to helping homeowners avoid foreclosure.

In collaboration with the Indiana Supreme Court’s statewide efforts to train attorneys – who are mainly in private practice – to provide legal advice to clients facing foreclosure, the Attorney General’s office today is offering the same CLE training to government attorneys, who will later volunteer their time and assist in settlement conferences.

This is a worthy effort, but a question comes to mind. Government attorneys normally don't have liability insurance. What protections are there?

Courts - "NCAA Hit With Another Suit Over Licensing Issue"

That is the heading to this comprehensive WSJ Law Blogentry by Chris Herring this afternoon. It begins:

It’s been a rough three months for the NCAA, at least for the lawyers who handle the organization’s licensing and intellectual-property work.

First came the class-action suit in May, filed by former Arizona State and Nebraska quarterback Sam Keller, that accused the association of making money off athletes’ likenesses without paying them for it. Then in June, a pair of former football playersmade the same claim and filed a separate suit.

And we’ve recently learned that the NCAA is on the receiving end of another class-action suit. This one also alleges that thousands of former college basketball and football players have been exploited because their images or likenesses were used in things like video games, rebroadcasts of “classic” games and jersey sales. Ed O’Bannon (pictured), a former basketball star at UCLA, is the class representative on the suit.

Law - "Hoosier senators cross over on gun vote"

WASHINGTON -- Indiana's senators crossed party lines today over whether to allow permit holders to carry concealed weapons into other states that also allow them.

Sen. Evan Bayh was one of a minority of Democrats -- 20 -- who voted for the measure. Sen. Richard Lugar was one of only two Republicans who opposed it.

The measure, an amendment to a defense bill, needed 60 votes to pass, but fell two votes short.

The vote was the fourth time this year that Bayh has sided with gun rights advocates. He also:

-- Was one of 22 Senate Democrats who voted to repeal the District of Columbia's ban on semiautomatic weapons, bar the city's registration requirements for most guns, and drop criminal penalties for possessing an unregistered firearm in the city.

-- Was one of 27 Senate Democrats who voted to allow people to bring concealed guns into national parks.

-- Was one of 22 Senate Democrats who voted to allow Amtrak passengers to carry firearms in their checked bags. Lugar voted for the gun measures on Amtrak and national parks and against changing gun laws in the District of Columbia.

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

Scott and Kelly Schuler purchased thirty-two windows manufactured by Pella Corporation from Irmscher Suppliers, Inc. After the windows were installed in the home, the Schulers discovered that insects were entering their home through gaps around the screens. The Schulers sued Pella and Irmscher for a breach of the implied warranty of merchantability. After a bench trial, the trial court found that the windows did breach the implied warranty and awarded direct and consequential damages to the Schulers in the total amount of $47,827.85. On appeal, Pella and Irmscher argue that the trial court abused its discretion by admitting two letters from Irmscher to the Schulers reporting a Pella employee's conclusion that the windows were defectively designed, that the trial court erroneously concluded that the windows breached the implied warranty of merchantability, and that the trial court abused its discretion in calculating the damage award. We conclude that the letter was not double hearsay but rather was admissible as an admission by a party-opponent (because the conclusion was made by a Pella employee and reported by Irmscher, Pella's agent or intermediary) and an adoptive admission (because Irmscher manifested a belief in the truth of the Pella employee's statement). We also affirm the trial court's judgment that the windows breached the implied warranty of merchantability. But because we conclude that the trial court abused its discretion in calculating the amount of direct and consequential damages, we remand to the trial court with instructions to enter a new judgment.

Appellant/Intervenor Indiana Department of Correction (“DOC”) questions the trial court's jurisdiction over this matter and argues that this case is not the proper venue for review of DOC's Sex Offender Management and Monitory Treatment Plan (“SOMM”). Appellee/Cross-Appellant Timothy Moore (“Moore”) questions the application of the Indiana Trial Rules in this case. The State of Indiana and the Indiana Public Defender Council (collectively, “IPDC”) have provided their “Brief of Amici Curiae” and urge this court to review SOMM. We remand with instructions. * * *

The issue then is whether Moore raised only a challenge to the disciplinary actions resulting from his refusal to be subjected to a polygraph test and/or to admit to a crime he does not believe he committed or whether Moore's challenge is rooted in the Fifth Amendment.

As disclosed in our statement of the facts above, Moore's motion did indeed challenge the deprivation of credits and various privileges. However, his attorney previously challenged the deprivation of Moore's Fifth Amendment right under DOC's SOMM policies. Furthermore, in paragraph 7 of Moore's motion, he challenged the violation of his right against self-incrimination by citation to Gilfillen. Although his prayer addresses the restoration of credit time and privileges that were imposed as part of DOC's discipline, it is apparent from his attorney's letter and paragraph 7 of Moore's that the gravamen of Moore's claim is based on the constitutionality of certain requirements of its SOMM program. DOC cannot violate a prisoner's constitutional right against self-incrimination under the Fifth Amendment, impose sanctions because the prisoner asserts his rights, and then hide behind the shibboleth of “no review of prison disciplinary matters.” We conclude that the trial court had subject matter jurisdiction to review the deprivation of Moore's credit time and privileges after such deprivation occurred pursuant to Moore's claim of his Fifth Amendment right against self-incrimination. * * *

We agree that DOC is correct about the validity of its appeal from the trial court's belated grant of its motion to correct error. However, DOC's motion was entirely premised on the trial court's alleged lack of subject matter jurisdiction. As we determined above, the trial court did have subject matter jurisdiction; therefore, it erroneously granted DOC's motion to correct errors. Accordingly, the trial court's original order granting Moore's motion must stand. * * *

DOC contends that it was denied due process because it received neither notice nor an opportunity to be heard prior to entry of the trial court's order requiring DOC to restore Moore's credit time classification and privileges. Our examination of the record, however, discloses that DOC was granted permission to intervene and to file a motion to correct error. In short, DOC received notice in sufficient time to intervene and be heard. After the grant of permission to intervene and to be heard, DOC chose only to attack the trial court's jurisdiction. It did not ask to reopen the case or address the particular subject matter of the trial court's judgment. DOC was not denied due process.

The IPDC contends that this case presents an appropriate opportunity for this court to rule on the constitutionality of SOMM and to develop a “bright line” rule pertaining to DOC's implementation of SOMM. DOC counters that the record in this case is insufficient to provide this court with the information to allow for meaningful evaluation of SOMM's constitutionality and to allow for an informed development of a rule pertaining thereto. * * *

Because DOC has erroneously placed its entire defense on its subject matter jurisdiction argument, there is a clear nonconstitutional basis for deciding this case.

We remand with directions that the trial court vacate its grant of the motion to correct error and reinstate its original order in favor of Moore.

In Kelly R. Patterson v. State of Indiana - "There is sufficient evidence to support Patterson's theft convictions. Patterson has not established that the trial court abused its discretion in sentencing her or that her sentence is inappropriate. We affirm."

Updating this ILB entry from July 15th, headed "Impact of the crime lab testimony decision,", the Washington Post has posted this story. Some quotes:

RICHMOND, July 22 --Virginia Gov. Tim Kaine (D) announced Wednesday morning that he is convening a special session of the General Assembly to respond a U.S. Supreme Court ruling that prosecutors say will lead to more dismissed cases, and has already resulted in some drunk driving cases being thrown out.

The ruling, issued last month, requires prosecutors to present technician testimony, in addition to scientific reports, in drug, drunk-driving and other cases. State and local officials say complying with it could mean significant new staffing expense and major administrative changes within the court system. * * *

The Supreme Court, in the case of Melendez-Diaz v. Massachusetts, ruled that defendants are entitled to cross-examine the person who prepared a lab report or a blood-alcohol content certificate, and that such reports may not be admitted as evidence if prosecutors do not present the person who prepared the report.

Virginia law allows defense lawyers to subpoena such technicians for their case, but Justice Antonin Scalia said that practice wrongly shifts the burden of proof from the prosecution to the defense.

[More] Tony Mauro of The Blog of Legal Times has posted an entry concluding:

In spite of Kaine's dramatic move, Virginia may be able to make relatively minor adjustments to its laws to accommodate Melendez-Diaz. Scalia said that states can develop procedures -- and many already have -- to notify defendants adequately about forensic evidence, giving them time to decide whether to call witnesses or waive the confrontation right. Scalia argued that it might be in defendants' best interest to waive the right, rather than having a government witness highlight the details of damaging evidence in person before a jury.

Ind. Decisions - One prisoner appeal today from the 7th Circuit

After police searched two of his
residences, David C. Brock was convicted of possessing,
with the intent to distribute, methamphetamine and
cocaine, and of being a felon in possession of a firearm.
Several years later, Brock brought a motion under
28 U.S.C. § 2255, claiming to have located a previously
unavailable witness, Reginald Godsey, who was
prepared to testify that the officers coerced him into consenting to a search of the house he and Brock shared.
Therefore, Brock claims, the search was non-consensual
and violated his Fourth Amendment rights, and the
evidence found in that house must be suppressed, with his
sentence vacated or reduced accordingly. The district court
denied Brock’s motion—a decision we affirm.

Richard Givan, a justice on the Indiana Supreme Court for 26 years and the court's chief justice for half that time, died Tuesday. He was 88.

Givan, born June 7, 1921, in Indianapolis, became the state's 96th justice when he joined Indiana's highest court in 1968. He was chief justice from November 1974 to March 1987 and retired in 1994.

His death was announced by the Supreme Court. No cause of death was listed, and no information about funeral arrangements was available.

Chief Justice Randall T. Shepard served on the court with Givan from 1985 to 1994. During that time, Shepard came to know his colleague as an energetic judge and friend.

"I have wonderful memories of the time I shared with Justice Givan on the bench," Shepard said in a written statement. "He was a thoroughly practical man, deeply rooted in Indiana's legal community and interested in new ways of improving courts."

For seventeen years, Givan maintained a private practice, first with his father and later with the firm of Bowen, Myers, Northam and Givan. In 1966 Givan was elected to the Indiana House of Representatives. In 1968, he was elected to the Indiana Supreme Court. He took office January 6, 1969 and served the then constitutional term of six years. He received confirmation votes in 1974 and 1984 for ten-year terms. During his tenure on the court, he served as Chief Justice from November 1974 through March 1987. He retired from the court December 31, 1994.

Tuesday, July 21, 2009

Law - "Arbitration company to cease consumer work" [Updated]

From the Chicago Tribune blog, Chicago Law, an entry, complete with links to the complaint and settlement agreement: It begins:

The reputation of consumer arbitration took another hit, as one of the biggest companies that specialized in resolving small claims by banks and credit-card issuers over unpaid bills agreed to stop handling such cases.

The Minnesota attorney general sued the National Arbitration Forum last week, accusing the privately held Minnesota-based company of being an arm of the collections industry rather than the impartial alternative to the court system it marketed itself to be. Here's a copy of the complaint.

In an agreement announced Sunday, the NAF no longer will be allowed to settle disputes between consumers and credit-card companies. The settlement allows the company to continue to arbitrate Internet domain disputes.

Chicago area lawyers who represent borrowers hailed the settlement as a significant victory.
"I think this particular organization was horrendously unfair and now we know the reason," Dan Edelman said. “People don’t understand that arbitration awards can be turned into judgments and result in asset seizures.”

Edelman filed a lawsuit last week seeking to invalidate NAF arbitration awards that were taken to local courts to allow collections agencies to enforce the judgments.

The settlement also provides more evidence to consumer advocates who have been challenging mandatory arbitration clauses written into consumer contracts. In addition to credit cards, contracts involving autos, cell phones and health care require consumers to resolve disputes through binding arbitration rather than going to court.

Two major arbitration firms are backing away from the business of resolving disputes between customers and their credit-card and cellphone companies, throwing into disarray a controversial system that prevents unhappy consumers from filing lawsuits.

The American Arbitration Association said Tuesday it will stop participating in consumer-debt-collection disputes until new guidelines are established. Its decision came two days after another big group, the National Arbitration Forum, said it would stop accepting new cases as of Friday.

Their retreat has big implications for credit-card and cellphone companies, which generally require customers to agree to mandatory arbitration. They argue arbitration is less expensive and time-consuming for both parties than going to court.

Consumer advocates have criticized the practice for years, saying consumers often don't realize they are waiving their right to sue when they sign contracts with the companies. Critics also say the arbitration process favors companies over consumers.

The National Arbitration Forum said companies prevail over consumers in 94% of such cases. Credit-card companies defend those results, arguing that there is typically a long paper trail proving the customers owe the amounts in dispute.

Here is a story from WTCA AM 1050, in northern Indiana, and I think this is Marshall County:

07/21/09 During the Commissioner’s meeting Monday they instructed the County Attorney to sit down and talk with Sheriff Jon VanVactor on the ordinance passed in July of 2007 which enacted a $30 booking fee.

During the meeting Commissioner Kevin Overmyer said they enacted to ordinance to collect a booking fee two years ago and the Sheriff has declined to put it into practice. He explained that the Sheriff and the Sheriff’s Association had some reservations on collecting a booking fee because of litigation.

Since the litigation came to light the county has made sure their ordinance took into consideration indigent inmates and allowed for refunds of anyone found not guilty.

Council member Judy Stone attended the Commissioners' meeting and also spoke in favor of implementation of the booking fee. She did mention that the County in the southern part of the state involved in the litigation has amended their ordinance. She has obtained their new ordinance and will share it with the County Attorney.

Ind. Decisions - Another NFP COA decision reclassified

Button argues that he cannot be held in contempt for his failure to pay a debt, that his assets should not be garnished to pay the judgment, and that he should not have to make another court appearance absent a change in his circumstances. * * *

Article 1, Section 22, of the Indiana Constitution provides:

The privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter contracted: and there shall be no imprisonment for debt, except in case of fraud.

Relying on this provision, our supreme court has held that because a debtor may not be imprisoned for his or her failure to pay a judgment debt, the debtor may not be imprisoned for proposing the judgment remain unsatisfied until the debtor obtains attachable assets. State ex rel. Wilson v. Monroe Superior Court IV, 444 N.E.2d 1178, 1180 (Ind. 1983). Likewise, Button may not be imprisoned for either his failure to pay the judgment or his failure to propose a suitable payment plan. To the extent the trial court threatened Button with imprisonment, it erred.

Further, any order requiring Button to pay the judgment must be based on evidence of his ability to pay. Here, no evidence was presented indicating that Button had the ability to pay $25.00 per month toward the judgment. Button has established prima facie error. Therefore, we remand for an evidentiary hearing regarding Button‟s ability to pay the judgment prior to the entry of an order requiring him to make monthly payments toward it.

Conclusion. The trial court improperly threatened Button with imprisonment for his failure to propose a plan to pay the judgment, and any order requiring him to pay a judgment must be based on Button‟s ability to pay it. We reverse and remand.

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

Jim and Carol Daily (“the Dailys”) have petitioned for rehearing from our opinion in this case, reported as Daily v. City of Columbus Board of Zoning Appeals, 904 N.E.2d 343 (Ind. Ct. App. 2009), in which we held that the City of Columbus Board of Zoning Appeals (“the BZA”) and the trial court erred by finding and concluding that the 2.1-acre lot in Columbus, Indiana that the Dailys are purchasing on contract was illegally created in 1973. We grant the Dailys’ petition to clarify our decision in this appeal and write to address the issue of frontage and access. * * *

The Dailys' petition for rehearing is granted to clarify our decision in this appeal and to address the issue of frontage and access. The judgment of the trial court is affirmed with respect to the issue of frontage and access, and our original opinion reversing and remanding to the trial court on the issue of the lawfulness of the creation of the 2.1-acre lot is affirmed in all respects.

Indiana Code section 31-37-11-7 (2008) does mention the consequences of failing to meet the applicable time limits. * * * Thus, when a child is in detention, and the appropriate time limits are not met, the statutory remedy is not dismissal of the charges and discharge of the child, but release of the child either on his own recognizance or to his parents, guardian, or custodian.

Here, however, we are dealing with Section 2(b), which is applicable when the child is not in detention. Section 7 is silent with regard to violations of the applicable time limits when the child is not in detention. This does not mean, however, that a violation of Section 2(b) requires outright dismissal of the allegations. To the contrary, we fail to see why dismissal would be inappropriate for a child who is in detention, but somehow appropriate for a child who is not. Without clear statutory authorization, we cannot say that a violation of the sixty-day limit of Section 2(b) required the trial court to dismiss the allegations that J.D. was a delinquent child. [cite omitted] Regardless, we hold that J.D. waived his rights under Section 2(b) by failing to object to the setting of the hearing outside the time limit. Affirmed.

Ind. Decisions - Supreme Court issues one today

We hold that an alarm company's commercial general liability and umbrella insurance policies do not cover a claim against the alarm company for delays in observing or reacting to a failure of the retailer to make a scheduled setting of a night alarm. The claim does not arise from an “occurrence” as defined by the policy, and is also within an exclusion for "alarm services.”

We also hold that, standing alone, the fact that an insurer also denies coverage on other issues does not preclude the insurer from raising failure to give timely notice of a claim, and does not conclusively rebut the presumption that untimely notice of a claim prejudices the insurer. * * *

The trial court's denial of summary judgment on Cincinnati's coverage defenses is reversed, and the case is remanded with instructions to enter judgment for Cincinnati.

Law - Homeowners beset from many directions

"New appraisal rules raise many concerns" by Nicole Blake of the Indianapolis Star. The story begins:

When Jake Stamper chose to refinance his four-bedroom home this year, he anticipated the Southside house would retain most of the value it had three years ago.

But instead, an appraiser determined Stamper's $259,000 house was worth $30,000 less. The culprit, Stamper says: new guidelines that allow lenders to hire appraisers who know little about a market.

Dubbed the Home Valuation Code of Conduct, rules that went into effect May 1 are meant to eliminate conflicts of interest that created pressure on real estate appraisers to inflate the value of a property.

Mortgage brokers and real estate agents say the rules also complicate and delay the loan process and open the door for inexperienced appraisers to determine home values.

"Title-Insurer Fees Draw Scrutiny " by James R. Hagerty of the WSJ. The story begins:

The U.S. title-insurance industry faces increasing pressure from regulators to justify the fees charged to consumers for ensuring they have clear ownership of their homes.

For most people, title insurance is just another mysterious fee they must pay when they buy a home or refinance a mortgage. Unlike some of those fees, though, title charges aren’t negligible. They range from several hundred to several thousand dollars—and last year totaled more than $10 billion for the title industry. Lenders insist on the insurance to protect them against the possibility that a taxing authority, another creditor or a disgruntled heir may have a claim to the property, among other risks.

As falling home prices tempt more people back into the housing market in some parts of the country, politicians and regulators are raising questions about whether they may be paying too much for this protection. “There’s no transparency,” Delores Kelley , a state senator in Maryland, said in an interview. She introduced legislation that created a commission to study the title-insurance industry in Maryland. That panel is due to make recommendations about possible regulatory changes by December.

Monthly payments for property tax bills — an option already available and used by about a dozen taxpayers in Vanderburgh County — would be formalized under a proposal advanced Monday by two local legislators.

Courts - Who decides when all the judges should normally recuse themselves?

That is the subject of this story today about the New York judicial pay disputes, reported by Joel Stashenko of the New York Law Journal. Some quotes from the lengthy story:

The six associate judges of the state's highest court, who normally are expected to recuse themselves in cases where the outcome would affect them personally, now face the prospect of invoking a "rule of necessity" to consider whether they and the state's other judges must be given a raise.

The Court of Appeals has determined that there is an appeal as of right in two judicial pay cases, Maron v. Silver, 58 AD 3d 102, and Larabee v. Governor, 880 N.Y.S. 256. But if the court is disqualified from hearing the issues involved, there apparently would be no other forum for their resolution, and the litigants would be left in limbo. * * *

While not codified in state law, the rule of necessity has developed within the judiciary in New York and elsewhere as a last resort to having cases adjudicated when there are no other courts to turn to.

Ind. Courts - "IHSAA faces Title IX lawsuit over scheduling: Former coach claims inequity in nights girls and boys basketball games are played"

Nat Newell reports today in a story on the front of the Indianapolis Star sports section:

Former Franklin County High School girls basketball coach Amber Parker filed a Title IX lawsuit in federal district court in Indianapolis on Monday on behalf of her two daughters against the Indiana High School Athletic Association and 14 school corporations whose girls basketball teams compete against Franklin County, Parker's attorney, William R. Groth, said.

Title IX is the 1972 federal statute that prohibits discrimination on the basis of gender by institutions that receive federal money. The suit challenges the scheduling differences between boys and girls basketball teams, with boys playing more games on Friday and Saturday nights and girls more weekday evening games, according to a news release. * * *

The suit alleges that the IHSAA was put on notice by federal authorities as early as 1997 that gender-based scheduling disparity was occurring but the organization ignored that warning and allowed the discrimination to continue for years, according to the news release. The defendants will have 23 days to file a response to the suit, though they can request an additional 30 days, according to Groth.

The U.S. Department of Education's Office of Civil Rights in Chicago sent a letter about the scheduling disparity to Bob Gardner, then commissioner of the IHSAA in 1997. At that time, girls teams played 10.5 percent of their games on Friday nights compared with the boys' 48.1 percent, according to a story in The Indianapolis Star on March 1, 1997.

The ILB hopes to post a copy of the complaint.

In a related matter, the story continues:

The Monroe-Gregg School District, which includes Monrovia High School, has agreed to correct several Title IX violations raised in a complaint filed by parent Steve Knieper, according to Knieper.

Awards will be provided equally for boys and girls teams and statistics will be posted on the school's Web site for the boys and girls teams. A junior high school girls golf team will be established for the fall season. The girls basketball team will practice after school instead of at 5 p.m. The school has until 2010-11 to switch its schedules and provide an equal number of Friday and Saturday night games for the boys and girls.

Updating this ILB entry from yesterday, quoting from Benjamin Lanka's story in the Fort Wayne Journal Gazette, today Gary Welsh of Advance Indiana has posted this lengthy entry, headed "Legislature Endangers Solvency And Manageability Of Homeowners Associations", that sets out a number of criticisms of the new legislation.

Monday, July 20, 2009

Courts - "Under the Iqbal decision, federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not."

That is how this article by Adam Liptak of the NY Times, on the end of notice pleading as we know it, concludes. From the article:

The most consequential decision of the Supreme Court’s last term got only a little attention when it landed in May. And what attention it got was for the wrong reason.

But the lower courts have certainly understood the significance of the decision,Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington. * * *

Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.

This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience in the pre-trial fact-finding process called discovery.

Mark Herrmann, a corporate defense lawyer with Jones Day in Chicago, said the Iqbal decision will allow for the dismissal of cases that would otherwise have subjected defendants to millions of dollars in discovery costs. On the other hand, information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible. * * *

In the Iqbal case itself, Javaid Iqbal, a Pakistani Muslim who was working as a cable television installer on Long Island, said he was subjected to intrusive searches and vicious beatings after being arrested on identity fraud charges two months after the Sept. 11 attacks.

Justice Kennedy said Mr. Iqbal’s suit against two officials had not cleared the plausibility bar. All Mr. Iqbal’s complaint plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.”

Justice David H. Souter, said the majority had adopted a crabbed view of plausibility and had in the process upended the civil litigation system.

In his dissent in Iqbal, Justice Souter wrote that judges should accept the accusations in a complaint as true “no matter how skeptical the court may be.”

“The sole exception to this rule,” Justice Souter continued, “lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.”

But that is no longer the law. Under the Iqbal decision, federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not.

I recognize that the majority’s approach is consistent
with a decision of the Ninth Circuit in a very similar case.
See Blausey v. U.S. Trustee, 552 F.3d 1124 (9th Cir. 2009).
I acknowledge as well that both our case and the Ninth
Circuit’s concern temporary statutory provisions that
have now been replaced by permanent rules, and that the
issue is therefore “transitory” and perhaps not worth
creating a circuit split. Maj. op. at p. 10. But I am convinced
that Blausey was wrongly decided, for the reasons I have
explained; it drew a strong dissent from Judge Gorsuch,
sitting with the Ninth Circuit by designation, and I think
he was right. 552 F.3d at 1134-37 (Gorsuch, J., dissenting).
I am also not so sanguine about the limited effect of the
majority’s jurisdictional decision. It fashions an exception
that swallows a jurisdictional rule. A holding
that a court clerk’s transmittal of portions of the lowercourt
record can substitute for the appealing party’s
total noncompliance with a jurisdictional pleading requirement
is potentially quite far-reaching.

Another of the 7th Circuit's opinions today, authored by Judge Flaum, U.S. v. Carter, has this intriguing introduction:

David R. Carter is charged
with robbery of a Chicago Community Bank branch on
the south side of Chicago in February 2008. The constable
blundered while investigating his case, and the
district court accordingly suppressed much of the
evidence against him. The government now appeals,
arguing that the district court erred by suppressing (1) a
bank teller’s out of court identification of Carter, (2) bait
bills and other evidence taken from an apartment where Carter was arrested, and (3) Carter’s post-arrest
statement to investigators.

For the following reasons, we reverse the district
court’s order suppressing the disputed evidence.

Hall Render Killian Heath & Lyman co-founder Rex Killian returns to the firm that bears his name some four decades after he began his law career. This time, rather than law, Killian will lead the firm’s Governance Consulting practice and serve as Of Counsel.

“For as much as this is like coming home for Rex, his role to build Hall Render’s Governance Consulting practice better reflects his work in the twenty years since leaving the firm,” said William H. Thompson, the firm’s managing partner. “I am very excited by the wealth of knowledge and experience Rex brings back for existing and new clients of the firm. Rex’s consulting services will complement well the legal services we provide to the health care industry.”

The Governance Consulting practice will serve established and new clients alike in ensuring engaged, effective and productive Boards of Directors for both for-profit and not-for-profit health care entities.

“We founded Hall Render some 40 years ago as a firm committed to practical solutions. ‘Tell us what you want to accomplish and we’ll tell you how to make it happen.’” said Rex Killian. “It is that mentality exactly that brings me back. As the demands of a hospital’s governance structure increases, so do the expectations. My approach is to help boards have greater impact and thus greater value.”

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

We affirm the trial court‟s finding that Husband was in contempt for nonpayment of Wife‟s medical insurance premiums. We reverse its ruling that Paragraph 10 of the Decree was a property settlement and not maintenance and ordering Husband to amend his income tax returns accordingly. Affirmed in part, reversed in part.

The SLA is part of the Indiana Consumer Credit Code, which provides that it “shall be liberally construed and applied to promote its underlying purposes and policies,” Ind. Code § 24-4.5-1-102(1), which include “protect[ing]…borrowers against unfair practices.” Ind. Code § 24-4.5-1-102(2)(d). Even without this liberal construction provision, we cannot agree with Payday’s claim that the dunning letter is not an attempt to contract for or collect attorney fees on Hamilton’s small loan. The dunning letter is a clear violation of Ind. Code § 24-4.5-7-410(d).

With regard to Ind. Code § 35-43-5-8, which covers fraud on financial institutions, we note that Payday’s claim for attorney fees is delineated in a separate paragraph from its claim for fraud. Accordingly, the prohibited attorney fee claim is not a part of an Ind. Code § 35-48-5-8 claim.

Payday contends that it cannot be held responsible for the prohibited contents of the dunning letter because the letter originated from [their attorney] Hall’s office. * * * [I]t is undisputed that Payday hired Hall as its attorney in this collection case and that Hall sent the letter in question as a special agent on behalf of Payday for this limited purpose. It strains credulity to suggest that additional evidence must be submitted by Hamilton to prove that Payday “caused” this violation of the SLA, especially given its claim that identical letters are routinely used by payday lenders. It is clear that Payday caused the violation to occur. * * *

We note that when the dunning letter is inconsistent, contradictory, and akin to a literally false statement, the court may make a determination that the letter violates the FDCPA as a matter of law. See Avila v. Rubin, 84 F.3d 222, 226-27 (7th Cir. 1996). Here, the dunning letter attempts to collect an amount not expressly authorized by the agreement creating the debt or permitted by law. The letter unambiguously threatens litigation if attorney fees are not paid, and as we point out above, such a threat violates the prohibition against collecting or attempting to collect attorney fees found at Ind. Code § 24-4.5-7-409. This alone is sufficient to warrant the trial court’s conclusion.

In addition, as the trial court concludes, the dunning letter is misleading “in that it would lead a reasonable person (let alone an unsophisticated debtor) to conclude that [Hamilton was] legally obligated to pay attorney fees to satisfy her obligation to [Payday].” * * * It is apparent as a matter of law that Hall’s letter misrepresents the amount of debt owed and that this is a clear violation of the FDCPA. * * *

The defendants contend that the trial court erred in awarding attorney fees because Hamilton was represented by the Notre Dame Legal Clinic and by student interns certified pursuant to Indiana Admission and Discipline Rule 2.1. Essentially, the defendants argue that attorney fees cannot be awarded where a party has incurred no fees and that such an award would be a windfall. * * *

Under Pinnacle and Lamb, it is evident that the defendants’ contention should be, and is, denied.

We affirm in part and reverse and remand in part, with instructions that the trial court change its judgment to reflect our holding in Issue I. In order to avoid a “windfall” to Hamilton, we instruct the trial court to direct the attorney fee award to the Notre Dame Legal Aid Clinic.

B.M., the paternal grandmother (“Grandmother”), appeals the trial court’s dismissal of her Verified Petition for Grandparent Visitation for lack of standing under the Grandparent Visitation Act (“GVA”). We restate the issue as whether a paternal grandmother has standing to petition for visitation with her grandchild when the mother of the child is deceased and the father voluntarily terminated his parental rights. We affirm. * * *

Grandmother asserts that the trial court erred when it dismissed her petition for lack of standing. In particular, she contends that the court misinterpreted the GVA when it concluded that the grandparent seeking visitation rights must be the parent of the child’s deceased parent. * * *

The GVA was enacted in derogation of the common law and must be strictly construed. * * *

The “child’s parent” referred to in code section 31-17-5-1 is the same person as the “child’s parent” referred to in code section 31-9-2-77. Therefore, the GVA confers standing only upon grandparents who are the parents of the deceased parent of the child. Here, Grandmother is not the parent of the child’s deceased parent, and she does not have standing under the statute to seek visitation. The trial court did not err when it dismissed Grandmother’s petition.

Jennings Water first petitioned the Office of Environmental Adjudication (“OEA”) for administrative review of IDEMs decision to issue a permit to Lykins for her proposed CFO, alleging that Lykins CFO would endanger and contaminate Jennings Water's well water field located approximately a mile away from the proposed CFO. Jennings Water's petition was denied by the OEA, and Jennings Water's petition for judicial review of the final order issued by the OEA was denied by the trial court. Jennings Water now appeals claiming that the trial court erred by affirming the decision of the OEA, which upheld IDEM's approval of Lykins' CFO permit. The following restated issues are presented for our review:

I. Whether the trial court erred by finding that the OEA decision was not arbitrary, capricious or unreasonable in that the OEA concluded that the CFO was not located in a “sensitive area”; II. Whether the trial court correctly found that the OEA used the correct, de novo standard of review; III. Whether the trial court erred by finding that Jennings Water failed to meet its burden of demonstrating that the OEA decision was arbitrary, capricious, or unsupported by substantial evidence; and IV. Whether the trial court erred by finding that the OEA's decision was not contrary to law.

We affirm the trial court's order denying the Petition for Judicial Review.

This July 17th ILB entry is headed: "Venue changed in LaPorte County judge's case; 200 anonymous online newspaper reader comments entered in evidence." It came to mind this morning when I read Eugene Volokh's blog entry about a Tennessee murder trial headed "Court Refuses To Order Restrictions on Reader Comments at Media Web Pages Related to Death Penalty Trial." In the case, per the opinion, the defendants:

requested that this Court order (1) media outlets to disable a portion of their websites (their internet forums) to prohibit web users from posting comments about any stories related to this case; (2) require media outlet internet users wishing to utilize the internet forums to use their true names and addresses; (3) or that this Court establish guidelines for acceptable comments on the internet forums and employ real-time monitors to ensure compliance. In Defendant Cobbins' written motion, he asserts that the intensive media coverage generated by this case “has fueled hostile threats, accusation, and diatribes by the public ... directed toward [the defendant], his co-defendants, and toward the attorneys who have been appointed by this Court to represent the various defendants.”

A growing number of roadside beggars, typically seen at interstate highway ramps and major city intersections, has prompted a proposal to toughen the city's panhandling laws.

"I have personally noticed an increase in people standing in the median, sometimes stopping traffic, trying to have conversations with people driving by," said City-County Councilman Michael McQuillen, a Republican who introduced the measure.

In essence, the proposal adds what McQuillen calls a "50-foot danger zone" that would prevent people from standing near stoplights and stop signs, even if they are merely standing and holding a sign.

The ordinance, which passed out of committee 5-1, is up for final adoption at the council's meeting tonight. Also on the agenda: an increase in the innkeepers tax to help the Capital Improvement Board plug a funding gap.

McQuillen said the panhandling proposal is a public safety issue.

"On at least three occasions," he said, "I have either been almost rear-ended or had someone stop suddenly in front of me." * * *

"I feel it's unconstitutional and it is targeting specific groups," said Councilman William Oliver, a Democrat. "And it would keep people from displaying signs, and that is a violation of free speech." * * *

Since 1999, it has been illegal to ask for money from people in stopped or parked vehicles or at bus stops. Although enforcement has been sporadic, violators could be fined up to $2,500 under the ordinance. Shortly after its passage, the ordinance was challenged by the Indiana Civil Liberties Union, but it was upheld in federal court.

Liens filed by neighborhoods in Allen County against their residents over uncollected dues are increasing. Associations are even filing lawsuits to ensure they get the money needed for maintenance of community areas and other services. A newly enacted state law, however, will give the two sides time to resolve their problems without resorting to the court system, according to one of the law’s authors. * * *

Katrina Newcomb, vice president of The Newcomb Group, manages association dues collections for several Fort Wayne neighborhoods. She said just this year the number of unpaid dues for her neighborhoods jumped 10 percent.

“Our phone has been ringing off the hook because our neighborhoods are getting in this predicament,” she said.

The unpaid dues range from $91 to $350, Newcomb said, adding her business would be even busier except many associations don’t feel they can pay for collection services.

The reasons for the jump aren’t surprising. People are struggling to hold jobs and pay their mortgages, said Terry Cornelius, an attorney for Arlington Park.

“People are reluctant to pay association dues for homes they are going to lose,” he said.

The northeast-side Arlington Park neighborhood association has filed the most liens over the past 2 1/2 years, which Cornelius said isn’t surprising because of its large size. It charged homeowners $670 this year for association dues. * * *

Cornelius said the association follows a fairly routine schedule for collections. The dues are due by Jan. 1. If they aren’t paid by April, a lien is filed. A letter then goes out in May followed by a lawsuit in June.

He said the association tries to work with people who can’t pay the dues, including setting up payment plans. People in trouble, however, should contact the association to seek assistance, a sentiment echoed by neighborhood associations across the city.

Putting effort into collections is necessary, Cornelius added. If people were allowed to not pay, responsible homeowners would be forced to pay higher fees to care for the entire neighborhood, he said.

A lack of home sales has forced collectors to be more aggressive, Newcomb said. Because liens must be paid when a house is sold, the issues were typically handled quickly during an active real estate market. Now that homes are staying on the market for much longer, Newcomb said those liens remain unpaid. This has led more associations to pursue lawsuits against homeowners as a way to get their fees.

A state law didn’t help in mediating disputes between homeowners and associations, according to Grant Shipley, Wildwood Park president.

When an association filed a lien against a homeowner, the association was required to file a lawsuit within a year to prevent the lien from expiring, he said. This put association members in uncomfortable positions of having to file lawsuits against their neighbors, some who simply couldn’t pay.

“They made us be heavy-handed,” Shipley said. “It caused lots of problems. We had to go threaten lawsuits against people.”

Those concerns prompted lawmakers to intervene this year, overwhelmingly approving House Bill 1071. Rep. Phil Hinkle, R-Indianapolis, wrote much of the bill after hearing complaints from homeowners and associations.

Much of the law involves changes to how new homeowner associations can operate. Existing associations can vote to be included under the new rules, meant to help resolve conflicts.

But a key provision applies to all homeowners involving lawsuits. Now an association must file its lien within a year, but a lawsuit can’t be filed until 12 months have passed. The suit must be filed within five years. That section went into effect July 1.

Cornelius, Arlington Park’s attorney, said he was unaware of the law change but would investigate how that affects the association’s procedures.

Shipley said the new law will help with collections. He said the association will still file liens, but bases enforcement efforts on each person’s ability to pay. The important piece is to encourage both sides to work together, he said, to make a successful association and prevent conflict.

The House bill added a new Article to the Indiana Code, IC 32-25.5, titled "Homeowners Associations." In addition, as discussed in today's story, the bill amended IC 32-28-14-8 to provide that the complaint to enfore a homeowners association lien may be filed within five years. IC 32-28-14-9 is also changed.

Ind. Gov't. - Daniels' welfare privatization: Too big to fail? Shouldn't we be working on a Plan B?

Updating this ILB entry from July 13th, the Indianapolis Star's Will Higgins has a lengthy story today headlined "Privatizing welfare means more fall through cracks, critics say: Mishandling of cases has risen since contractor took over." After detailing a number of these failed cases, the story concludes:

FSSA Secretary Anne Murphy has said that if IBM's service record does not improve by September, it's possible the contract will be canceled.

What would happen then is not clear.

"What happens if in September, the system is still not working?" said Rep. Bill Crawford, D-Indianapolis, who served as chairman of the state's Select Joint Commission on Medicaid Oversight and opposes privatization.

"We can't revert back to the state system. There is no state system. The state system has been dismantled.

Courts - "Might it happen? Slaughterhouse overruled?"

The 7th Circuit's opinion last month in NRA v. City of Chicago may play a pivotal role this fall in the SCOTUS' reexamination of the Fourteenth Amendment’s Privileges and Immunities Clause, according to this analysis posted last evening by Lyle Denniston of SCOTUSBlog, titled "Might it happen? Slaughterhouse overruled?" Some quotes:

It follows from the Slaugherhouse Cases, the Ninth Circuit added, “that the Privileges and Immunities Clause did not protect the right to keep and bear arms because it was not a right of citizens of the United States.” That, it indicated, remains good law, even after the Supreme Court’s decision in Heller v. District of Columbia in 2008 recognized a constitutional right to have a gun under the Second Amendment.

Only the Supreme Court would have the authority (absent a new constitutional amendment) to overturn the Slaughterhouse Cases. Two other Circuit Courts — the Second (in an opinion joined by Judge Sotomayor) and the Seventh — refused to extend the Second Amendment to the states, concluding that they were bound by Supreme Court precedents.

The Second and Seventh Circuit rulings are the ones now being challenged in the Supreme Court in three cases: Maloney v. Rice (08-1592) — the Second Circuit case — and National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521) — both from the Seventh Circuit. (Because Judge Sotomayor participated in the Maloney case at the Second Circuit, she probably would not take part in any action by the Justices on that case.)

In the NRA petition, its lawyers argue alternative points for applying the Second Amendment to the states — the “incorporation” method, and applying it through the Privileges and Immunities Clause. The petition does not include extensive argument on the Slaughterhouse Cases, though that precedent is mentioned.

The McDonald petition goes further, suggesting the reconsideration of Slaughterhouse if the Court is unwilling to use the other, incorporation method, to extend the Second Amendment. It argues:
“The almost meaningless construction given this [Privileges and Immunities] provision in Slaughterhouse was wrong the day it was decided and today stands indefensible.”

The Maloney petition takes a somewhat cautious approach. It suggests that the Slaughterhouse Cases need not be overruled directly, but should be reinterpreted. It makes an argument likely to appeal to conservative Justices and others: re-reading that old precedent to extend Second Amendment rights, but to do so in a way that keeps the Privileges and Immunities Clause from becoming as “open-ended” as it says other parts of the Fourteenth Amendment have become.

This week's oral arguments before the Court of Appeals (week of 7/20/09):

Tuesday, July 21st

1:30 PM - National Union Fire Insurance Company, et al vs. Standard Fusee Corporation, et al - Standard Fusee Corporation (SFC) is a Delaware corporation headquartered in Maryland that currently manufactures flares at sites in Indiana and Maryland, among other places, and formerly did so at a site in California. One ingredient in flares is perchlorate, and perchlorate contamination has been discovered at or around the Indiana and California sites. As a result, SFC has incurred certain defense costs, and SFC filed this lawsuit in an attempt to have its insurance providers cover those defense costs. In addition to the insurance coverage questions, a preliminary procedural issue is whether the substantive law of Indiana or of Maryland should apply. The Marion County Superior Court granted SFC's motion for partial summary judgment, declaring (1) that Indiana law applies and (2) that, under Indiana law, the insurance companies have a duty to defend SFC. The insurance companies now appeal. The Scheduled Panel Members are: Judges Riley, Kirsch and Mathias. [Where: Supreme Court Courtroom - WEBCAST]

Friday, July 24th

10:00 AM - Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General - Subhen Ghosh was suspended and ultimately terminated from his employment with the Indiana Department of Environmental Management for misconduct on the job. On Ghosh's appeal, the State Employee Appeals Commission upheld Ghosh's termination. Ghosh's petition for judicial review of that decision was dismissed after an appeal to this court. Meanwhile, the State Ethic's Commission determined a complaint filed by the Indiana Office of the Inspector General against Ghosh regarding his misconduct was proven and imposed a fine. Ghosh filed a petition for judicial review. The trial court upheld the SEC's decision and found that Gosh's attempt to litigate the propriety of his termination was estopped due to the earlier proceedings. Ghosh now appeals. The Scheduled Panel Members are: Judges Darden, Bailey and Robb. [Where: Indiana Court of Appeals Courtroom - WEBCAST]

Next week's oral arguments before the Court of Appeals (week of 7/27/09):

None currently scheduled.

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

Sunday, July 19, 2009

Law - "Amazon's Kindle to Sell Law Books" and the implications

Last week a reader referred me to this July 10th article in the Wall Street Journal, headed "Amazon's Kindle to Sell Law Books." It discussed the discounts off print prices for digital works from the Practising Law Institute:

For example, the three-volume "Art Law," by Ralph E. Lerner and Judith Bresler, carries a Kindle price of $220 instead of the $275 print list price, while the Kindle edition of "Copyright Law: A Practitioner's Guide," by Bruce P. Keller and Jeffrey P. Cunard, is priced at $236, a 20% discount from the $295 print price.

"There are a lot of practical reasons to believe that the digital market may well be more profitable for publishers of legal, medical and educational texts," said Andrew Frank, a vice president at market-research firm Gartner Inc. "Since these texts are reference material, the ability to index them and set up bookmarks, which you can do easily with the Kindle, will save time and money for users." * * *

Traditionally, lawyers buy PLI books whose binders allow them to insert new material and discard the old. PLI customers typically receive annual supplements priced at $125. With the Kindle, users will be able to delete old versions of their texts and substitute new books. The digital editions are also searchable.

At the time, I responded to the reader:

I own a Kindle and when I read the WSJ article this morning, thought to myself, of all the books I wouldn't want on the Kindle would be an art law book! I can see readiing ICLEF handouts on a Kindle, but not this!

And the price! Maybe I'd buy Art Law for the Kindle, at an 80% discount. Otherwise, I'd want the printed version that I could put stickers in, highlight, and turn to what I wanted in an instant, etc.

I read throw-away mysteries on my Kindle, and won't pay more than $9.95 for them.

Another WSJ story, on July 16th, is headed "Book Smarts? E-Texts Receive Mixed Reviews From Students." Some quotes:

Last August, administrators at Northwest Missouri State University handed 19-year-old Darren Finney a Sony Corp. electronic-book Reader. The assignment for him and 200 other students: Use e-textbooks for studying, instead of heavy hardback texts.

At first, Mr. Finney worried about dropping the glass and metal device as he read. But eventually, the sophomore came to like the Reader. Its keyword search function, he says, was “easier than flipping through the pages of a regular book.” Dozens of other participants, however, dropped out of the program, complaining that the e-texts were awkward and inconvenient.

Nationwide, universities, high schools and elementary schools are launching initiatives like the one at Northwest Missouri State, testing whether electronic texts that can be viewed on e-book readers or on laptop computers can cut costs and improve learning. * * *

Proponents tout e-books’ potential to do things that old-fashioned textbooks can’t. Since e-books aren’t printed and don’t need to be sold through physical distributors, they should theoretically be less expensive than regular books and can save students and schools money. What’s more, e-textbooks are environmentally friendly, can lighten backpacks and keep learning materials current.

But the transition has sparked controversy among some educators. They say that digital reading comes with drawbacks, including an expensive starting price for e-book readers and digital textbooks. Also, publishers make e-texts difficult to share and print, and it is unclear how well students will adapt, some say. The earliest versions of these devices lack highlighting, note-taking and sharing capabilities, and one leading provider’s e-books expire after several months, meaning they can’t be kept for future reference. * * *

E-textbooks may cost only slightly less than the print equivalent. That’s because publishers don’t want to undercut themselves at bookstores, analysts say.

For example, Human Reproductive Biology, a textbook from Elsevier BV’s Academic Press, costs $65 for the Kindle edition, $66 from Sony’s e-book store, and $49 for a 180-day subscription on e-textbook seller CourseSmart.com. A printed edition costs about $72 from various retailers. Tom Rosenthal, senior manager of electronic product sales at Academic Press, says, “At the moment, there’s not a lot of [cost savings]. What people tend to forget is that we have costs beyond printing and warehousing and distribution. We still have other overheads.” * * *

Many e-textbooks can’t be shared, printed or resold. In a recent study of 504 college students by the Student Public Interest Research Group, a consortium of student activists based in Chicago, the organization slammed existing e-textbook efforts such as CourseSmart for “being on the wrong track.” * * *

At colleges, trials of e-textbooks and readers have been mixed. When Northwest Missouri State ran its trial with the Sony Reader last fall, dozens of the 200 participants bailed out after about two weeks. “The students more often than not either suffered through it or went and got physical books,” says Paul Klute, the assistant to the university’s president, who oversees the e-book program. Students didn’t like that they couldn’t flip through random pages, take notes in the margins or highlight text, he says.

Penn State ran a pilot program last fall with 100 of the Sony Reader devices, and found similar results. The devices are good if you’re using them “on a beach or on an airplane,” said Mike Furlough, assistant dean for scholarly communications at Penn State University Libraries. “But not fully functional for a learning environment.”

The ILB has posted in the past about the high cost of textbooks, which has led to a big secondary market in used texts. Publishers have been looking for ways to circumvent that.

Textbooks purchased for the Kindle generally are protected by the publisher's DRM -- this prevents copying the book, selling it to someone else, printing it, etc. In essence, all the purchaser gets for his money is the right to read the book on the Kindle, and sometimes only for a specified time period. Somehow it does not seem that the price the buyer may be asked to pay -- frequently at least 80% of the cost of a printed book that cannot be resold, marked up, etc. -- is reasonable.

Finally, this next item makes clear that the "purchaser" does not "own" the book, but only a limited bundle of rights:

This entry, titiled "Amazon Pulls Already-Purchased Books from Kindle," was posted July 17th on the blog Smarterware. It quotes a David Pogue story in the NY Times. Some quotes:

This morning, hundreds of Amazon Kindle owners awoke to discover that books by a certain famous author had mysteriously disappeared from their e-book readers. These were books that they had bought and paid for—thought they owned.

But no, apparently the publisher changed its mind about offering an electronic edition, and apparently Amazon, whose business lives and dies by publisher happiness, caved. It electronically deleted all books by this author from people’s Kindles and credited their accounts for the price.

This is ugly for all kinds of reasons. Amazon says that this sort of thing is “rare,” but that it can happen at all is unsettling; we’ve been taught to believe that e-books are, you know, just like books, only better. Already, we’ve learned that they’re not really like books, in that once we’re finished reading them, we can’t resell or even donate them. But now we learn that all sales may not even be final.

Plans to computerize records and link more than 400 civil and criminal courts around Indiana started in 2002. But after spending millions of dollars, only a few dozen courts in nine counties have hooked on.

“That’s not a very high-performance level,” said Sen. Luke Kenley, R-Noblesville, an attorney and chairman of the influential Senate Appropriations Committee. “I think we need to re-evaluate the project as far as where we are going and what we are going to do.

“Right now it’s kind of stagnant.” * * *

In fact, during the regular legislative session, a provision was inserted into a version of the budget that failed that would have moved the project to the State Budget Agency.

Currently, it is handled within the Indiana Supreme Court’s Judicial Technology and Automation Committee, known as JTAC. * * *

“We are making decisions one piece at a time instead of an overall look at the cost,” Kenley said. “Let’s institutionalize it so it’s a performing asset. Now that we are past the development stage and it’s operational, we need to be more standardized in operation.” * * *

Mary DePrez, director and counsel of trial court technology for JTAC, said it’s difficult to determine a timeline to deploy Odyssey to all 92 counties because of problems encountered with the quality of data contained in the existing systems. Given that, she estimated it could take five or six years to complete a statewide rollout of Odyssey.

She notes that regardless of the goals for the primary case management system, the committee has worked on some other smaller but important projects for the judicial system, such as a protection order registry and electronic ticketing application.

A July 18th AP story, which was carried in this (South Bend Tribune version) and shorter versions in several state papers, included these quotes:

Supporters say the task is overwhelming and progress has been made despite a five-year false start. But at least one key lawmaker believes it's time to re-evaluate the project, which has cost the state about $20 million so far.

"That's not a very high performance level," Sen. Luke Kenley, R-Noblesville, chairman of the Senate Appropriations Committee, told The Journal Gazette of Fort Wayne. "I think we need to re-evaluate the project as far as where we are going and what we are going to do." * * *

The project is handled by the Indiana Supreme Court's Judicial Technology and Automation Committee, but Kenley would like to see that change. During the regular legislative session, he wrote a provision into a failed version of the state budget that would have moved the project to the State Budget Agency.

State. Rep. Win Moses, D-Fort Wayne, doesn't think that's necessary.

"I think we're doing a good job given the vast extent of it and the complexity of it," he said. "We should not slow down."

Mary DePrez, director of the Supreme Court technology committee, said that in 2002 the committee projected that implementing a statewide case management system could cost between $73 million and $113 million. She estimated the statewide rollout of the Odyssey system that debuted in 2007 could take five or six years. * * *

Supreme Court spokeswoman Kathryn Dolan said the project is complex, in part because the vendors must ensure that the statewide system and the local systems can communicate.

"These are smart people who are figuring it out, but it takes a little bit of time," she said.

Kenley was critical of the piecemeal approach to the rollout.

"We are making decisions one piece at a time instead of an overall look at the cost," Kenley said. "Let's institutionalize it so it's a performing asset."

Though only a handful of counties so far are on Odyssey, Dolan and Moses pointed to progress made on related computerization projects. Those include an electronic ticketing system used by most Indiana police, court access to Bureau of Motor Vehicle traffic infraction records and police access to domestic violence protection orders statewide.

"They're big projects that fit into a bigger part of the puzzle," Dolan said.

Two NE Indiana legislators, Rep. Win Moses and Sen. Dennis Kruse, sent a letter that was published in the Journal Gazette Saturday. It basically says that they are behind the Court's system and are pleased with the progress being made. The second half of the letter is devoted to lauding the ancillary projects.

What to make of all this? It is hard for anyone to be against the project goals:

[T]o equip all the state's courts and clerks with a computer system to manage cases, connect court systems with each other, police and state agencies and make records available on the Internet.

But to repeat Senator Kenley:

“We are making decisions one piece at a time instead of an overall look at the cost,” Kenley said. “Let’s institutionalize it so it’s a performing asset. Now that we are past the development stage and it’s operational, we need to be more standardized in operation.”

Currently it appears that JTAC's focus may have shifted to the ancillary projects because of slow going implementing the Odyssey case management system in the counties. Stepping back and assessing the overall project, its priorities and goals, its funding, its ultimate state and local costs, as Sen. Kenley recommends, seems a reasonable suggestion before raising court fees once again.

The $7.00 (per civil, criminal, infraction, and ordinance violation action) JTAC automated recordkeeping fee, collected at the county level, goes to the state, regardless of whether a county has elected to participate in the Odyessy system. JTAC's proposal this year to raise the fee to $10 was rejected by the Senate Finance Committee, chaired by Sen. Kenley. (See this Feb. 21, 2009 ILB entry for details.)

Many massive state computerization projects have bogged down and needed reappraisal. The BMV project and the FSSA project come immediately to mind. Also, the first iteration of the "plan to link the 400 Indiana courts."

Law - "Working with foreclosure consultants can get a lawyer burned"

This article by Steven Seidenberg in the July issue of the ABA Journal begins:

As the recession puts a dent in legal work along with just about every other segment of the economy, many attorneys are being tempted by a business opportu­nity that shows no signs of slacking off: working with foreclosure consultants.

Foreclosure consultants, also known as loan modifi­cation agencies, advertise that they help struggling homeowners stave off foreclosure. They negotiate with lenders in an attempt to get new, more affordable loans for their customers.

With the real estate market in the tank and foreclosure numbers continuing to rise around the United States, these are boom times for businesses that do foreclosure consulting. And many of these companies des­perately want to associate themselves with attorneys.

Some of them are looking for outside counsel. Some need in-house counsel. Others want to enter into some sort of joint business enterprise. And they all routinely offer attorneys the possibility of earning fees that reach into six figures.

There’s just one catch. at­torneys who get involved with foreclosure consultants may be violating legal ethics rules on a number of grounds, including prohibitions against using “runners” (someone who solicits business on behalf of a lawyer), sharing fees with nonlawyers, and failing to exercise independent judgment on behalf of clients.

Ind. Courts - More on "State targets prosecutor's lapsed license"

INDIANAPOLIS — Hundreds of criminal convictions, including that of a man found guilty of a crash that killed three people, could return to court because the Indiana prosecutor who oversaw the cases had an inactive law license for more than three years.

Newton County Prosecutor Ed Barce asked the state to change his license status in August 2005, saying he did not practice law in Indiana. Yet he continued to prosecute cases.

Barce, who has since reactivated his license, denies committing misconduct. He may have a sound defense: Indiana's constitution requires prosecutors to have law licenses before taking office but doesn't specify that they must keep them active. Legal experts say they're baffled by the case but doubt whether Barce's inactive license could be enough to throw out the convictions.

"Why in God's name did he put himself in this position?" asked John A. Strait, a Seattle University School of Law professor.

The state Supreme Court set a disciplinary hearing Oct. 16 and Barce could be disbarred, reprimanded or suspended. * * *

Barce's status became known in February when a Lake Superior Court judge learned his license was inactive and delayed a trial in which Barce was special prosecutor. Last month the judge declined to dismiss the case, saying that no harm was done.

Barce, 50, has not explained his actions and he did not return calls from The Associated Press. His attorney, Kevin McGoff, said he didn't know of any cases other than the Lake Superior Court one that were affected by Barce's status. He declined further comment. * * *

"To be a prosecutor and to walk into a courtroom in any state in America you have to A, be licensed, and B, have to have active status," said Scott Burns, executive director of the National District Attorneys Association.

All 91 Indiana prosecutors have active law licenses, according to court records.

"You're just a lawyer with one client ... the state of Indiana. Certainly it's practicing law," said Jack Crawford, a former Lake County prosecutor who is now a defense attorney.

Judge Molter said that while Barce has a deputy, all the cases in his office go through him.

"Ed's the final voice," Molter said.

According to the complaint, when Barce's license was inactive his office filed more than 1,000 felony and misdemeanor cases. Donald R. Lundberg, the disciplinary commission's executive secretary, estimated that more than half likely resulted in convictions.

Those cases could now be taken back to court.

But Indiana University School of Law Professor Joel Schumm said the odds of overturning such cases were "very slim to none at all."

Defendants would have to show Barce's status affected their trial's outcome.

Also, legal precedent sides with prosecutors.

The Indiana Supreme Court in 1998 found no harm was done when an out-of-state attorney served on a team of prosecutors without a valid license. The high court let the conviction stand.

Ind. Gov't. - "Victims still waiting for help Thousands of claims for aid from state sit unpaid" [Updated]

That is the headline to this lengthy, front-page story today in the Indianapolis Star, reported by Tim Evans, Mark Alesia and Heather Gillers. Some quotes:

When Hoosiers are the innocent victims of violent crime, the state has a fund to help them with such things as funeral costs and counseling or to cover lost wages.

But the state's promise of help all too often becomes a cruel and exasperating wait -- one that victims' advocates say is akin to punishing the innocent a second time.

An Indianapolis Star investigation found that the agency that administers the fund is understaffed and ill-equipped and slow to enact recommended reforms. The result is that thousands of Hoosiers wait -- and wait -- for help from a fund that now has a backlog of more than three years.

The Star found:

The state agency, the Indiana Criminal Justice Institute, acknowledges it has not processed the "vast majority" of the more than 3,500 claims filed since January 2006, leaving thousands of victims waiting to find out whether they will get help. The ICJI "cannot determine" how many of those claims it has paid. A state audit earlier this year said none had been paid.

The state's antiquated system for processing and tracking applications is so bad that officials cannot provide basic information, such as the exact number of pending applications and a list of payments made since 2005.

Indiana has a staff of just three to administer the program, resulting in the highest caseloads per worker among the 44 states that responded to an inquiry by The Star. The director of Iowa's program called the Indiana staffing level "nuts."

A November 2007 report commissioned by the ICJI -- which cost almost $150,000 -- found claims were resolved differently depending on the person assigned to the case, not established policy. But the ICJI still has not produced the recommended policies-and-procedures manual.

Many Indiana victims don't bother to seek assistance through the fund because of the long wait and hassles associated with applying. Others aren't even aware the help is available -- a shortcoming targeted this year by a bill in the legislature. That bill died without a hearing. * * *

T. Neil Moore, the ICJI's executive director, said his agency is working to eliminate the backlog.

"Is it bothersome?" Moore asked. "Sure it is. Are we sitting on our heels not doing anything about it? No. We're working very diligently on correcting the system."

He said some issues had been addressed, but that the ICJI would need as much as $1 million for a modern computer system. He has applied for a grant to pay for the new technology and hopes to have problems corrected by the end of the year.

When The Star relayed its findings and asked for comment from Gov. Mitch Daniels, his spokeswoman, Jane Jankowski, responded via e-mail: "We do not have a comment for your story. I understand you've spoken to ICJI, and they've talked to you about the efforts they have ongoing." * * *

State lawmakers created the compensation fund in 1978 to help innocent victims of violent crimes with medical bills, lost wages, counseling, funeral costs, legal fees and other related expenses.

The program is administered by the Victim Compensation Division of the ICJI, but nearly all the money for violent-crime victims comes from the federal government.

The fund paid out nearly $1.2 million in its most recent fiscal year. But, again, virtually all of that was for claims filed more than three years ago.

Indiana lawmakers set a $15,000 cap on reimbursements from the fund and made the state the "payer of last resort." That means the state waits until all other potential payment sources -- from insurance policies to court settlements to neighborhood fundraisers -- have been exhausted before victims are reimbursed for any qualifying, uncovered expenses.

The approach, Moore says, is one factor in the long delays that Indiana victims face.

Many other states get around that roadblock. They make upfront payments, then recover any overpayments when a victim is paid from another source.

Louisiana, which is also a payer of last resort, routinely gets needy victims money the same day they ask for it through an emergency application process.

Louisiana's Crime Victims Reparations Program last year expedited nearly 400 applications, sending out checks to victims within two hours.

Moore said he was not sure Indiana could pay any sooner, as long as other payment options were pending, without legislative changes. However, the consultant's report indicates it can and even states that "ICJI proposes they shouldn't wait to pay . . . " * * *

Moore said the ICJI does some outreach, but most of the burden falls on police, prosecutors and victims' advocates, some of whom have grown weary of the program.

"We gave up (helping victims seek reimbursement). Some things are just not worth beating your head about," said Ann DeLaney, executive director of the Julian Center shelter in Indianapolis.

"The thing that irritates me the most is that this holds out a false hope," she said. "It says the state cares and wants to help you get back on your feet, and then basically pulls the rug out from under them."

Moore said he has not heard such complaints.

"When I look at the product the team is putting out in that unit," he said, "and the amount of work they're putting out, I think their performance is superior."

According to state law, the fund is fueled by government grants and a percentage of court fees, work release money, and restitution from criminal cases, and 75 percent of punitive damage awards in civil cases.

The earlier ILB entry also has links to the State Board of Accounts audits.

The story also shows that a month ago, Mr. Moore gave a similar response as in today's Star story regarding when the situation would improve:

T. Neil Moore, the institute’s executive director, said the backlog of claims is the result of a faulty database that officials hope will be fixed either late this summer or early in the fall. The institute – which has a history of lagging behind on payments out of the fund – has been playing catch-up and getting money to eligible people who made claims before 2006, Moore said.

In a related matter, readers may recall this March 3rd ILB entry involving Indiana's punitive damages allocation statute, IC 34-51-3, and Marion County Judge Dreyer's ruling in John Doe v. Father Jonathan Lovill Stewart.. From the Star story of March 3rd:

The Indiana Supreme Court hasn't ruled directly on the punitive damage limits the General Assembly approved in 1995. But it has addressed another part of the law, upholding in a 3-2 ruling in 2003 a provision requiring successful plaintiffs to cede 75 percent of punitive damage awards to the state. The Indiana Violent Crime Victim Compensation Fund gets those funds.

BTW, a check of the Clerk's docket does not show that Judge Dreyer's ruling has been appealed.
[Updated] See also this 7/21/09 Indianapolis Star editorial, headed "No justice for victims of crime."

Ind. Courts - "Lawyer ordered before judge on contempt issue"

"Attorney faces contempt: Judge orders Sarah Nagy to appear in court July 29" is the headline to the story today in the Richmond Palladium Item, reported by Bill Engle:

Indianapolis attorney Sarah Nagy will be back in Richmond at the end of the month to face a possible civil contempt of court charge in the aftermath of the Charles "C.J." Kennedy trial.

Wayne Circuit Court 2 Judge Gregory Horn on Friday issued an order for Nagy to appear at 9 a.m. July 29 to show cause why she should not be held in contempt.

Nagy represented Kennedy during Kennedy's trial for an attack on a Richmond man on the U.S. 40 Bridge, now the Lamar Lundy Bridge, April 2, 2007.

At the end of the Kennedy's May 5 sentencing hearing, Horn admonished Nagy for being repeatedly late during the trial. She arrived 30 minutes late for the sentencing hearing and more than 15 minutes late following a recess.

Horn gave Nagy the choice of accepting a fine from the court or making a donation to the Boys and Girls Clubs of Wayne County.

Nagy chose to make the donation, but, according to Horn's order this week, no donation was ever made.

"To date, however, although more than 60 days have passed since such order was made on the record, attorney Nagy has failed to make a donation as directed," Horn wrote in his order.

But Nagy, in an e-mail late Friday, said she made the donation, but anonymously to the "National Organization of the Boys and Girls Clubs of America."

She said she has proof of the payment.

"In this situation, the judge felt I needed to be punished for tardiness," Nagy wrote. "I did not complain. I obeyed fully with this requirement.

"Nonetheless, I did, in fact, comply, and any such entry requiring for me to appear to show cause would be a simple misunderstanding on the part of the judge."

"I assume that any reasonable judge would rescind such an order for me to appear to show cause, when in fact the order to appear assumes non-compliance, which is not factual," she wrote in response to the Palladium-Item.

Updating earlier ILB entries from July 14th and 17th headed "BMV headaches ahead", Eric Bradner of the Evansville Courier & Press has a report today headed "BMV change could cause more issues than it solves," that indicates the changes may not have Gov. Daniels' full support. Some quotes:

The Indiana Bureau of Motor Vehicles cast the changes, set to take effect next year, as necessary steps to crack down on identity theft and move toward the recommendations issued by the 9/11 Commission.

But Vanderburgh County Prosecutor Stan Levco said his office filed identity theft charges just three times last year, and none of those cases involved fraudulent driver's licenses.

Vanderburgh County Sheriff Eric Williams said most identity theft cases have nothing to do with driver's licenses.

"Truly, fraudulent driver's licenses obtained through the BMV really haven't been a problem for us," he said.

Critics say the BMV changes disproportionally will hurt the elderly and underprivileged, meanwhile complicating state law and shoving aside new legislation that would have allowed Hoosiers to renew licenses online.

Gov. Mitch Daniels also has balked, saying he is hesitant to pile cumbersome requirements on an agency that has worked in recent years toward quicker service and greater efficiency.

Using documents such as birth certificates, Social Security cards, passports and more, Hoosiers seeking a new driver's license or state ID card or to renew a current one will have to prove their eligibility in four categories: identity, Social Security number, lawful status and Indiana residency.

It's a one-time requirement starting Jan. 1, 2010. Since Indiana licenses must be renewed every six years, the program largely will phase out by 2016, although new applicants still must present documents to satisfy each of the four categories.

Rather than printing out the IDs on-site and handing them out immediately, the BMV will print and mail them up to two weeks later. That change, BMV Commissioner Andy Miller said, is permanent. * * *

The change throws a wrench into legislation state lawmakers passed this year to allow online registration renewals.

Miller said that law still will take effect. However, Hoosiers will have to renew at least once with the new requirements in place, something that must be done in person. That means online renewals are years away.

One initial concern over the new requirements was that in previous years, local BMV offices have been open on election days so that anyone who needed an ID could get one immediately. Now, those IDs will be mailed days later.

But officials said the interim printouts the BMV plans to hand out while Hoosiers wait for their licenses or state IDs to arrive in the mail will be enough to gain entrance to voting booths.

Opponents still fear new requirements could drive voters away from the polls.

Indiana voters have to show state- or federally issued photo IDs before they vote. For the elderly who no longer drive, and for out-of-state college students who rely on state IDs, needing to find documents such as birth certificates or pay for new ones might keep them away.

Though first-time license or ID seekers already had to meet the stringent requirements, the Indiana Democratic Party immediately signaled its opposition to including those who are renewing licenses. Advocacy groups such as the AARP and the Indiana League of Women Voters have signaled their opposition as well.

"We are generally concerned that the rules will have a disparate impact on older and lower-income Hoosiers," said AARP of Indiana spokesman Martin DeAgostino.

He said birth certificates and passports in particular are problematic requirements.

Daniels brushed the criticism aside, calling it "nonsense." Instead, he said he is worried about "the convenience of the public" and whether an agency that has taken steps to improve speed, reduce error rates and improve customer service is reversing course.

"We've worked so hard to improve it, and I want to protect that," Daniels said.

JEFFERSONVILLE — More than seven months after an Indiana State Board of Accounts report revealed possible misuse of city credit cards by Jeffersonville Clerk-Treasurer Peggy Wilder, prosecution may be moving forward.

Clark County Prosecutor Steve Stewart — who has had the findings of the state’s report since January for a preliminary investigation — petitioned for a special prosecutor to look into the case.

In an order issued Friday, Clark County Superior Court No. 3 Judge Joseph Weber named Chris Owens, chief deputy prosecutor in Scott County, to investigate matter.

The state’s report, which covered 2007, said Wilder had used city information to obtain credit cards that were used only for personal purchases. Weber’s court filing also says that Wilder and “others within the Jeffersonville city government may have committed acts that constitute poor judgment, malfeasance or a crime under Indiana law.”

A Fifth Third Bank credit card, issued to the city, was apparently never used for anything but personal purchases, the report said.

In 2006 and 2007, the charges became so backlogged that the bank started electronically withdrawing money from city accounts in order to pay Peggy Wilder’s delinquent debt, the audit says.

Wilder told the board of accounts that it was a personal credit card and that Fifth Third made the electronic withdraws erroneously.

Bank records later indicated that wasn’t the case, the report says.

In another instance, a Republic Bank credit card was found to possibly have been used for thousands of dollars in personal charges. * * *

The prosecutor “feels that the appointment of a special prosecutor is reasonable and necessary in order to avoid the appearance of impropriety during any further investigation and prosecution of this case, if any,” the court documents say.

Peggy Wilder’s ex-husband — former Jeffersonville City Council attorney Larry Wilder — contributed $1,000 to Stewart’s campaign the last time he ran for office.

Peggy Wilder and Larry Wilder were married at the time of the donation. * * *

“I think it’s probably a good move for Mr. Stewart to remove himself,” said Jeffersonville City Councilman Ron Grooms. “I think he might have been seen as being too close.”

Grooms said he was happy to know the case is moving forward so the council, Peggy Wilder and the city could put the matter in the past.

The decision has been long awaited, as Stewart had revealed very little about the investigation since the state send him the audit in January.

Because of the number of irregularities cited in the report, Grooms said he didn’t believe the process took too long.

“That’s just a lengthy process,” he said.

He added he was not frustrated or disappointed with the time it took it for a special prosecutor to be named.

Mayor Tom Galligan echoed those comments, saying that city items often take years to move through the judicial system.

Friday, July 17, 2009

Ind. Gov't. - More on "BMV headaches ahead" [Updated]

Updating this ILB entry from July 14th, concerning the BMV's new, stringent identification requirements for receiving a new or renewed drivers license or identification card, the Indiana League of Woman Voters, which has a pending challenge in the Court of Appeals to Indiana’s Photo ID Law, has today filed a Statement of Supplemental Authority with the Court, calling to the attention of the Court the difficulties the new regulations will pose to those renewing or initially obtaining a driver’s license or ID card, documents now necessary to vote in-person and have that vote count.

The Statement of Supplemental Authority itself includes references to the Fort Wayne Journal Gazette editorial quoted in the July 14th ILB entry.

Ind. Decisions - Transfer list for week ending July 17, 2009

Here is the Clerk's transfer list for the week ending July 17, 2009. It is four pages long.

No cases were granted transfer either this week or last week.

________

Transfer lists have new feature. The "Denied/Granted" column, beginning in March 2009, includes the votes of the justices.

Search all the Transfer Lists: A new ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the May 22nd list.

Over five years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Ind. Law - More on: ISP NOT seeking to challenge the validity of the state golf cart law

Updaitng this ILB entry from Wednesday, the ILB has now received official word, via Sergeant Anthony D. Emery, ISP Public Information Officer:

Marcia,

Thank you for bringing this to our attention and for wanting to set the record straight. I am not sure where this person got their information, but it is incorrect.

The Indiana Legislature has spoken and made it legal for towns and cities to pass an ordinance making golf carts legal on their roadways. The Indiana State Police is not “fighting the validity of this law.” We will continue to enforce any and all laws in place to the best of our abilities.

With that being said, it should be noted the golf cart issue is a local ordinance. The Indiana State Police does not enforce any local or county ordinance, we only enforce state laws.

Please let me know if I can be of any further assistance in this matter.

And there are several more reports today:

From the Bluffton News-Banner, a story headed "Ossian Council OKs golf carts on town streets":

Ossian golf cart owners, rejoice. You can now be street legal.

Members of the Ossian Town Council approved on first, second and third readings and formally adopted an ordinance setting rules for owners of golf carts that will allow them to drive their favorite rides on the streets of Ossian.

BRISTOL TOWN COUNCIL When: Thursday Key action: Approved first reading of an ordinance to permit and regulate the use of golf carts on town streets. The ordinance outlines the permit, registration and golf cart safety equipment requirements that will be necessary to drive a golf cart in Bristol. The council will take final action on the ordinance at its next meeting at 7 p.m. Aug. 20 in the town hall..

Ind. Decisions - "The 2008 murder conviction of Chawknee Caruthers, who was given a 100-year prison sentence, was reversed Thursday"

The Court of Appeals 2-1 opinion July 15th in the case of Chawknee Caruthers v. State of Indiana (ILB summary here) is the subject of a story today by Laurie Wink in the Michigan City News-Dispatch. Some quotes:

A jury found Caruthers guilty of the Sept. 15, 2007, shooting death of Karim Turner in a case of mistaken identity. Caruthers maintained his innocence, claiming it was an unintentional shooting. He earlier had gotten into a fight with Santana Miller and said he was out looking to shoot Miller to get even. Caruthers saw Turner standing with a group of people in front of a house and thought it was Miller. He pulled a handgun from his pocket and fired several shots.

La Porte County Prosecuting Attorney John Espar said he was surprised by the decision. The Indiana Attorney General's office has already agreed to ask the Indiana Supreme Court to hear the case, Espar said. Since the appellate judges ruled that double jeopardy did not apply, Caruthers can be tried again on the same charges.

If the Supreme Court decides not to hear the case, Espar said he would pursue another trial.

"The state's hope is the Supreme Court will correct the conclusion reached by the appellate court and reverse the decision," Espar said. "Until the appeal process runs its course, he still stands convicted." * * *

Caruthers' attorney James Cupp filed an appeal based on what was termed "ineffective trial counsel" and the court's failure to interview witnesses after Cupp said some jurors felt intimidated by actions of Caruthers' family and the family of the deceased, Karim Turner. In addition, according to the court record, Cupp argued in the appeal that not enough evidence was produced to support a conviction.

In response to reports of jury tampering during the week-long trail, Lang had arranged for extra security and a provided a special parking area for jurors. The appellate court noted that the judge failed to interrogate the jury about the intimidation after Cupp mentioned it.

Lang said Thursday that typically, when the defense attorney doesn't object to the judge's decision, the right to object is considered waived. However, she did not want to make further comments on the case because of a possible appeal.

"This is how our legal system is set up," Lang said. "I respect the decision of the appeals court."

Ind. Decisions - No Indiana cases today from the 7th Circuit, but two of note nonetheless

MarchFIRST, Inc., an Internet
consulting company, entered Chapter 7 bankruptcy
proceedings in April 2001. Soon thereafter, marchFIRST
sent a notice of bankruptcy to its creditors requiring them
to file any claims against its estate by 4 p.m. on October 11,
2001. Avnet, Inc., an unsecured creditor of marchFIRST,
faxed its proof of claim to the claims agent at 4:43 p.m. on
October 11. Andrew Maxwell, the trustee of marchFIRST’s
estate, objected to Avnet’s claim because it was not timely filed. The bankruptcy court agreed and entered an order
sustaining the objection, which the district court upheld.
Because Avnet’s claim was filed after the deadline,
we affirm.

I. Background

After marchFIRST entered Chapter 7 bankruptcy proceedings,
the company mailed a notice of bankruptcy to
its creditors. The notice stated that proof of any claims
against its estate must be received by the bankruptcy
clerk’s office by October 11, 2001. The notice listed two
addresses where creditors could send their proofs of
claim—one address for claims submitted by mail and
another for claims submitted by hand or overnight courier.
Attached to each notice was a personalized proof-of-claim
form that stated in capital letters: “THE ORIGINAL OF
THIS PROOF OF CLAIM MUST BE SENT SO THAT IT IS
RECEIVED ON OR BEFORE 4:00 P.M., EASTERN TIME,
ON OCTOBER 11, 2001.”

Avnet received marchFIRST’s bankruptcy notice and
personalized proof-of-claim form. On October 11, 2001, at
4:43 p.m., Avnet faxed the proof-of-claim form to
marchFIRST’s claims agent with a cover sheet stating:
“Following is our proof of claim in this case. Original will
arrive by courier tomorrow morning.” As promised, a
courier delivered the original the following morning.
Nevertheless, Maxwell objected to Avnet’s claim because
the original proof-of-claim form did not arrive until
October 12, one day after the deadline. The bankruptcy
court sustained the objection and subordinated Avnet’s
claim, and the district court affirmed. * * *

The facts here are indistinguishable from Outboard Marine:
MarchFIRST’s notice was sufficiently clear that submission
by mail or by hand were the only permissible methods
of transmittal. The company was not required to also list
all impermissible methods of transmittal. Furthermore,
the form clearly emphasized that the original proof-of-claim
form must be submitted, implicitly ruling out
faxed submissions. Transmission by facsimile was improper,
and the bankruptcy court correctly rejected Avnet’s
argument.

Avnet next argues that the bankruptcy court erred by
not exercising its discretion under Rule 5005(c) of the
Federal Rules of Bankruptcy Procedure to deem its claim
timely. * * * A claimant who wants the benefit of
Rule 5005(c) must “offer[] [a] convincing justification or
explanation for its untimely filing.” Id. The bankruptcy
court did not abuse its discretion in declining to deem
Avnet’s claim timely.

Finally, Avnet argues that the bankruptcy court should
have considered its faxed submission as an informal
proof of claim and its subsequent mailing of the original
as an amendment to that informal claim. The informal
proof-of-claim doctrine is an equitable doctrine that
permits bankruptcy courts to treat a creditor’s late formal
claim as an amendment to a timely informal claim. [cites omitted] Even if
we were inclined to consider Avnet’s initial fax as an
informal claim, the fax was not timely; Avnet’s fax
arrived 43 minutes late.

In USA v. J.P. Stadtmueller, a 24-page opinion, the issue is whether district Judge Stadtmueller should recuse himself. Judge Ripple writes the opinion:

The United States (“the Government”)
has filed this petition for a writ of mandamus
seeking the recusal of the respondent district judge currently
presiding over a criminal action pending in the
United States District Court for the Eastern District of
Wisconsin. Because the Government has established that
a reasonable, well-informed observer might question
the impartiality of the district judge, we must grant the requested writ, disqualifying the judge from presiding
over the proceeding and requiring that he vacate all
orders entered since the filing of the recusal motion in
the district court. * * *

Here we must conclude that the Judge did more than
simply participate in a plea bargain. He questioned the
Government’s decision to prosecute the matter as a
federal case in terms that a reasonable observer might
well interpret as critical of the Government’s position in
the case. The statement that neither party would be pleased with his ruling on the suppression motions
could have been interpreted as indicating that he was illdisposed
toward the Government’s position and might
rule based not on the merits, but on his distaste for its
prosecutorial decision. A reasonable, well-informed
observer well may have concluded that the Judge was
no longer acting as a neutral arbiter, but was advocating
for his desired result. * * *

We must conclude, however, that, taken
in context, some of the Judge’s comments go further
and comment on substantive matters, rather than the
conduct of the proceedings. For example, as we have
just noted, the Judge questioned why this case was accepted
for federal prosecution, expressed concern about the time that had passed between Mr. Salahuddin’s
initial arrest and the commencement of federal proceedings,
and suggested that this case was an embarrassment
to the justice system and an inefficient allocation of taxpayer
resources. He also sought to avoid a conviction
under 18 U.S.C. § 924(c), so as to prevent imposition of
the fifteen-year mandatory minimum sentence.

In expressing these views and insisting that action be
taken to conform the future course of litigation to
those views, the Judge misapprehended the limits of his
authority as the presiding judicial officer and undertook
to participate in determinations that are in the proper
domain of the Department of Justice. The power of the
Executive Branch to make these decisions is a safeguard
of liberty. As this court has noted, entrusting
these prerogatives to the Executive ensures that “ ‘no one
can be convicted of a crime without the concurrence of
all three branches.’ ” United States v. O’Neill, 437 F.3d 654,
660 (7th Cir. 2006) (Posner, J., concurring in the judgment)
(quoting In re United States, 345 F.3d 450, 454 (7th Cir 2003)). Judges do not possess, and should not attempt to
exercise, prosecutorial discretion.

A motion under section 455(a) is “directed against the
appearance of partiality, whether or not the judge is
actually biased.” Balistrieri, 779 F.2d at 1204 (emphasis
supplied). We must conclude that the Judge’s actions,
assessed in their totality, are such that a reasonable, well-informed
observer would question his partiality. Hook,
89 F.3d 350 at 353-54.

The question before us is not whether the Judge is
biased. If the Government had the burden to establish
that fact, it would have indeed a high mountain to climb
in light of the Judge’s distinguished public service of
almost forty years. However, we must conclude that the
Government is entitled to the issuance of the writ of
mandamus for which it has petitioned because it has
established that a reasonable well-informed observer
could question the Judge’s impartiality. Accordingly, all
orders entered by the Judge after the motion for recusal
was filed must be vacated. The Judge is directed to
remove himself from further proceedings in this matter.

MCDCS failed to provide Mother with essential information including the date, time, and location of the March 28, 2008 termination hearing. In fact, the evidence indicates that the only notice provided to Mother was a general notice of the termination proceedings which specifically informed Mother that she had “until April 1st, 2008” to respond to the complaint before her parental rights “may” be terminated. As a result, Mother's statutory right to notice of the termination hearing pursuant to Indiana Code section 31-35-2-6.5 was fatally compromised. We therefore reverse the juvenile court's judgment terminating Mother‟s parental rights and remand this cause for a new termination hearing.

Law - "Bankruptcy Won't Discharge $350,000 of Student Loan Debt for Law Graduate"

Today Above the Law has an entry focusing on the bankruptcy law aspects of the case. It concludes:

Big banks are too big to fail. Mark Jesperson is too small to save.

The government says that making student loans nearly impossible to discharge during bankruptcy encourages lenders to make loans to students. Jesperson had a different perspective

"The system's set up as such that most people -- people like myself -- cannot complete a professional degree without the help of student loans," Jesperson said. "Then, even if that profession doesn't work, even if things go wrong, there's no way out."

Jesperson isn't working as a lawyer. He's a painter who lives in a trailer. How is he going to pay off $350,000? Well, he probably won't, not in this lifetime. But it is nice that the 8th Circuit has made the point that if you seek post-graduate education and things don't work out, you will be punished to the full extent of the law for the rest of your natural days.

Education might be the "silver bullet," for upward mobility in American society. But something is very wrong when the gun is trained on the very students seeking to better themselves.

U.S. Sen. Dick Lugar released the following statement on the nomination of Judge Sonia Sotomayor to be Associate Justice of the U.S. Supreme Court:

I have listened to the testimony of Judge Sonia Sotomayor before the Senate Judiciary Committee, carefully reviewed her public service record, and reviewed recommendations from Indiana constituents and colleagues here in the Senate. Judge Sotomayor is clearly qualified to serve on the Supreme Court and she has demonstrated a judicial temperament during her week-long nomination hearing. Judge Sotomayor has had a distinguished career of public service. She is well regarded in the legal community and by her peers. I will vote to confirm Judge Sonia Sotomayor’s nomination to serve as an Associate Justice of the Supreme Court of the United States.

[Updated at 11:22 AM] The Washington Post now has an article by Paul Kane, Robert Barnes and Amy Goldstein, headed "Lugar Is First Republican Senator to Back Sotomayor." A quote:

Lugar, who served as something of a foreign affairs mentor to Obama when they served together in the Senate and remains close to him, was considered a potential supporter of Sotomayor even before the confirmation hearings. Other GOP lawmakers also considered potential supporters early on were Sen. Mel Martinez of Florida, the only Latino Republican in the chamber, and Sens. Susan Collins and Olympia J. Snowe of Maine.

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Debra D. Noggle v. James A. Noggle (NFP) - "Wife has not convinced us that the trial court abused its discretion in this case by failing to provide her with a security interest on her share of Husband‟s ISTRF accounts. Wife has not cited to any portion of the record that would establish that beneficiary designation is available on Husband's elected distribution of his ISTRF accounts, and she did not request such beneficiary designation is her proposed findings."

LaPorte County Judge Jennifer Evans-Koethe, charged with trying to interfere with the investigation of her shooting, will have her case tried in Lake County.

Lake County Superior Court Judge Thomas Stefaniak Jr. on Thursday granted a motion by her attorney, Michael Tuszynski of South Bend.

Evans-Koethe, 34, was placed on indefinite suspension May 11 by the Indiana Supreme Court after being indicted by a grand jury on Class D felony obstruction of justice.

On Dec. 22, Evans sustained a graze wound to the head at her LaPorte home. Details surrounding the shooting have not been revealed, but a 911 recording showed her husband, Stephan Koethe, called for help.

Evans-Koethe was a deputy LaPorte County prosecutor at the time and took over as judge in LaPorte Superior Court 3 on Jan. 1 after her election in November.

She allegedly asked that a handwritten note considered evidence in the shooting be destroyed. Her husband, Stephan Koethe, is also charged with false informing and criminal recklessness, both misdemeanors.

Stefaniak made the ruling in LaPorte Circuit Court after the defense argued pre-trial publicity and disclosure of certain evidence the case would make it difficult to assemble an untainted jury.

[Updated at 12:26 PM]Craig Davison reports today in the Michigan City News-Dispatch:

LA PORTE - The obstruction of justice case for La Porte County Superior Court 3 Judge Jennifer Evans-Koethe will be moved to Lake County, an appointed special judge ruled. He also said in a hearing Thursday that it might not go to trial until January.

Defense attorney Michael Tuszynski of the South Bend firm of William P. Stanley & Associates entered 53 news articles and approximately 200 anonymous online newspaper reader comments as evidence that Evans-Koethe would not find a fair and impartial jury in La Porte County.

"A lot of it has to with the fact that Mrs. Koethe is a public official," he said. Tuszynski said the amount of publicity in the case and reader comments that she is already guilty of a crime showed an unfair jury pool. "I think there's some hostility."

"We do not know with absolutely certainty what the ladies and gentlemen of this community think of her," he said, adding that the court has to look at probability. "The probability Mrs. Koethe will receive a fair trial in the county is virtually nonexistent."

Stefaniak said this is only the third time in more than eight years on the bench he approved a change of venue request, calling it "a very extreme remedy."

Ind. Courts - "$1.3 million Allen County Courthouse fix OK’d"

The Allen County Council agreed to spend $1.3 million to repair the exterior of the Courthouse on Thursday.

The council agreed to spend money out of the cumulative capital fund, which is generated by property taxes, to pay for the entire project instead of performing the work in phases. Last week, the county commissioners awarded the low bid to General Restoration, a company in Columbus, Ohio, to do the work. * * *

General Restoration will clean and repair the terra cotta and stone on the clock tower this year. Next year, work will focus on repairing and cleaning the limestone that forms the bulk of the Courthouse plus the granite foundation, he said.

Workers will also repair the tunnel that connects the historic building to the City-County Building.

Ind. Courts - "Madison courthouse will come back"

Dale Moss of the Louisville Courier Journal has a column today on the restoration of the Jefferson County Courthouse in Madison Indiana, which burned in late May. Some quotes:

Plenty was saved for the courthouse to be restored instead of replaced. Walls and windows and floors largely remain. Likewise miraculous, the county’s story — its long public record — survived mostly by being frozen strategically in the hours after the fire. At great insurance-covered expense, both historic and routine documents are being freshened — essentially everything from Civil War discharges to the marriage applications of the three daughters of Mary Frances O’Connor.

"All I could think about: the oldest records, we'll lose those," said O'Connor, who retired after 32 years in elected county offices.

The state hauled in surplus desks and chairs and file cabinets at token county expense. Newton County, nearer Chicago than Madison, sent computers and nearby Hanover College offered technological expertise so that the government was up and again running in mere days. The next hurdle is to replace the courthouse roof by wintertime.

Stopgap covering seems impossible. Water can continue to cause damage as flame and smoke did. Mold is a big worry. “Once we get that on, I’ll breathe a lot easier,” county commissioner Tom Pietrykowski said of the roof.

The place was being fixed up, painted and spruced up, and was looking better than ever before it looked worse than ever. Crowds for Madison's bicentennial in early June would be wowed. Such was the hope, nearly the reality.

Thursday, July 16, 2009

Courts - Sotomayor not yet decided on cert pool

This item posted today by Tony Mauro of The National Law Journal was interesting to me -- I didn't know that Alito had dropped out of the cert pool:

Under questioning from Sen. Arlen Specter, D-Pa., on day four of her confirmation hearing, Supreme Court nominee Sonia Sotomayor indicated she is likely to follow Justice Samuel Alito Jr.'s approach to deciding whether to join the Court's "cert pool."

That's the arrangement that's been in place since 1972 whereby justices who participate pool their clerks for the purpose of summarizing and recommending action on incoming petitions. Those one-clerk summaries are then distributed to all the members of the pool. It started out small, but in the last decade or so, eight of nine justices participated -- all but Justice John Paul Stevens. The growth of the pool has led to criticism that individual clerks have too much power in the all-important gatekeeping function of deciding which cases the Court will take up and rule on.

Among the critics of the cert pool have been practitioners -- including onetime Hogan & Hartson appellate advocate John Roberts Jr. -- who have a hard time explaining to clients that their vitally important petitions have been read by only one or two law clerks before being tossed aside by the Court.
When Alito joined the Court in 2006, he at first joined the pool but then jumped out, after seeing how it operated and realizing that he'd prefer to have his own clerks give the petitions a look.

Sotomayor, who has clearly followed the long-running debate over the cert pool, said Thursday, "My approach may be similar to Justice Alito's." In other words, she said she wants to "experience the process for a while," presumably from inside the pool, before deciding whether to stay or leave, and "then figure it out." As a result, she told Specter, "I can't give a definitive answer."

Law - "After Injuries, College Athletes Are Often Left to Pay the Bills"

The NY Times today has a lengthy, front-page story by Kristina Peterson on college athlete injuries and lack of insurance coverage. Some quotes:

After years of concerns about inadequate health coverage for college athletes, the National Collegiate Athletic Association started requiring universities to make sure their athletes had insurance before competing.

But the association never established clear standards for that coverage when it introduced the rule four years ago, leaving colleges to decide for themselves. While some colleges accept considerable responsibility for medical claims, many others assume almost none, according to a review of public documents from a cross section of universities and interviews with current and former athletes, trainers, administrators and N.C.A.A. officials.

University officials say they go out of their way to inform students about the limits of insurance. Yet the situation has confused and frustrated athletes and their families, some of whom have had to shoulder large and unexpected medical bills. * * *

Many students, whether athletes or not, have medical insurance through their parents. But these plans often exclude varsity sports injuries, limit out-of-state treatment or do not cover much of the bill. Some colleges buy secondary policies to fill the gaps, although even these plans have holes. And only players hurt badly enough to require extensive care can turn to the N.C.A.A. for coverage. Its catastrophic insurance carries a $75,000 deductible, which will increase to $90,000 next year.

The absence of mandated coverage for athletes has prompted calls for change.

“That’s part of the cost of having an athletic program,” said David Dranove, a professor of health industry management at Northwestern University’s Kellogg School of Management. “It makes no more sense to tell the athletes, ‘You go buy your own health insurance,’ than it does to say, ‘You go buy your own plane tickets and uniform.’ ”

"Pendleton was a named respondent in the SEAC order appealed; the order submitted to the trial court with SEAC's motion to dismiss erroneously stated that the dismissal was “with prejudice”; Pendleton was served with Williams' petition, and the provisions of Indiana trial rules provide for an amendment to add a proper party. Based on such considerations, we reverse the trial court's order dismissing Williams‟ petition for judicial review, and we remand with instructions for the trial court to order joinder of Pendleton and consider the merits of his petition."

Courts - "One Rogue Worker Can Take an Entire Company Down: The courts are taking an uncompromising approach to respondent superior"

In January, the 2nd U.S. Circuit Court of Appeals affirmed the conviction of Ionia Management S.A. for the criminal acts of its nonmanagement employees. U.S. v. Ionia Mgmt. S.A., 555 F.3d 303 (2d Cir. 2009). What set this appeal apart was that Ionia, along with several amici curiae, including the Association of Corporate Counsel and the U.S. Chamber of Commerce, argued that the court should revisit its long-standing rule that a company can be held criminally liable for any criminal acts of even its low-level employees. Although the court of appeals found that argument "unavailing," this case has sparked a review of the appropriateness of respondent superior criminal liability.

Law - Home owners nationally seeking property tax reductions because of tumbling property tax values; new tools aid in effort

Ind. Gov't. - Indiana budget cuts film tax credit

Lesley Stedman Weidenbener of the Louisville Courier Journalreported yesterday on cutbacks in the Indiana film tax credit program. Some quotes:

Indiana is pulling back on its tax incentives for the film industry even as other states, including Kentucky, are boosting efforts to lure more productions.

The two-year budget bill passed last month by the Indiana General Assembly eliminated a sales tax exemption for production-related purchases and cut in half an income tax credit meant to encourage filming in the state.

Lawmakers stopped short of a request by Gov. Mitch Daniels to eliminate the income tax credit completely. * * *

Chris Ruhl, the governor's budget director, said Daniels has questioned the value of the tax incentives since they first went into effect in 2008. Daniels vetoed the legislature's first film incentives bill, saying it would help productions that would have been made in Indiana anyway. Lawmakers overrode that veto but then rewrote the law to be more restrictive.

The law offered a tax credit of up to 15 percent of production costs in Indiana but limited the incentive to major television or film projects and capped credits at no more than $5 million a year.

Changes approved last month reduced the cap to $2.5 million annually and eliminated the sales tax exemption. * * *

More than 40 states offer film incentives. In Kentucky, lawmakers this year approved essentially unlimited subsidies to lure TV and movie productions to the state by removing a cap on the state's 20 percent income tax credit. Michigan recently upped its income tax credit to 42 percent, and other states are making similar moves. * * *

The value of state tax credits for film productions isn't clear. A recent Ernst and Young study of a New Mexico credit found that film production activities in the state created 2,220 direct jobs in 2007 and returned $1.50 in state and local tax revenues for every $1 of credit.

But a study released this month by the Massachusetts Department of Revenue found that every dollar the state spends on film tax credits generates only 14 to 16 cents in additional revenue.

Ruhl said with budget problems looming, those numbers just aren't enough to justify state investment.

"As we were looking for ways to provide the modest increases in education and some other areas of the budget, we just thought this one really didn't have much merit," Ruhl said. "In our view, it was a dubious credit to begin with in terms of encouraging permanent job creation."

Environment - Wind turbines in Indiana [Updated]

Bats are already at serious risk because of a fungus -- this May 6th story in the Chicago Tribune is headed "Fungus is bat version of the black plague." This June 4th AP story begins:WASHINGTON - A mysterious fungus attacking...

Richard Essex of WTHR 13 Eyewitness News had this interesting report Sunday:Lebanon - A lawsuit between two Lebanon neighbors is being watched carefully by people in the wind turbine industry. The outcome could effect future commercial and residential development of...

Recently the ILB posted an entry headed "Porter County braces for future in wind power" (8/25/08) and another headed "In Rural New York, Windmills Can Bring Whiff of Corruption" (8/19/08). Thursday the NY Times had another interesting wind power story,...

Charles M. Bartholomew reports in the Gary Post-Tribune:VALPARAISO -- Porter County is in the path of a new industrial wind that's blowing across northern Indiana, driven by funding from foreign-based energy companies. Officials here are feeling the breeze in the...

A lengthy, fascinating story in Monday's NY Times, by Nicholas Confessore, looks at another aspect of the proliferation of wind turbines along the New York side of the Canadian border. Some quotes:BURKE, N.Y. — Everywhere that Janet and Ken Tacy...

Posted in The Indiana Law Blog on August 19, 2008 06:57 AM

Today there are two stories from the Indianapolis Star. Jeff Swiatek reports:

Two European energy companies are locking up land leases for wind farms in Boone County that would bring industrial-size wind turbines.

One problem: Boone County's zoning laws prohibit wind turbines, so the proposals could ignite the most intense debate yet in Indiana over how to deal with the surging number of wind farms, which up until now have been relegated to rural counties in the northwestern part of the state.

The Boone County plans are so new that they haven't been presented yet to county government officials, although they have been discussed with landowners at public meetings. The plans call for anywhere from 100 to 260 wind turbines that would together generate 200 to 400 megawatts of electricity.

The upper range is comparable in output to one midsize coal-burning power plant.

The companies look to lease 14,000 to 24,000 acres of land in Boone's less-populated western part, which includes the towns of Advance, Jamestown and Thorntown.

Wind energy companies are looking to Boone County because it's one of the windiest counties in the state.

Steve Niblick, executive director of the county's Area Plan Commission, said that because Boone County is in the path of suburban development spreading out from Indianapolis, "we are different than other counties with wind farms. There are just a lot of issues" the county must face, he said.

One of them: Does the county want to allow wind farms and their 200- to 300-foot-tall turbines, which would essentially rule out residential development on tens of thousands of acres for 30 years or longer (the length of a typical wind farm lease)?

"We do realize if we say yes (to wind farms) and they're put in, they are not going to go away," Niblick said.

The two companies leasing land in the county are enXco, which is based in Escondido, Calif., and owned by EDF Energies Nouvelles of Paris; and Gestamp Wind North America, a Houston company with a Spanish parent.

The enXco proposal calls for up to 130 turbines spread over 7,000 to 12,000 acres. Gestamp is looking at a similar-size farm. With large turbines costing up to $4 million each, the total of the two projects in Boone County could top $1 billion, counting lease payments and installation.

The companies have divvied up land where they're signing leases and not bidding against each other. "We're not competing, we're abutting," said Linda Grice, who's negotiating for land for Gestamp.

Boone landowners seem eager to lease their land to the wind farm developers, said enXco marketing manager Sandra Briner. "Obviously there is opposition in some areas, but the communities generally are pretty excited about what wind is going to bring them."

Average lease payments nationally are $5,000 a year per turbine, with smaller payments for easements on power lines and access roads and an upfront one-time check to lock up the land. In Indiana, most recipients of wind farm payments are farmers or farmland owners, who are eager to accept checks for thousands of dollars a year for setting aside just a quarter of an acre per turbine.

The Indiana Farm Bureau hosted a recent meeting for farmland owners to discuss the Boone proposals.

"They have to make a decision on what are the long-term payoffs. What are they giving up?" said Justin Schneider, a Farm Bureau attorney. "It's not like you are signing a one-year lease where you can get rid of somebody if you don't like them."

Just to the north of Boone County in Clinton and Tipton counties, Arlington, Va.-based energy company AES Corp. has proposed a 200-turbine wind farm over 75,000 acres.

Developers and speculators want to lock up land in rural Indiana for wind farms -- the Next Big Thing in the energy business.

Does anyone else hear an echo of the ethanol boom from three summers ago?

You remember. Every couple of weeks the state touted another plant to make the ethanol that would help free us from dependence on foreign oil. At one point developers had plans for enough refineries to produce nearly 1 billion gallons of ethanol a year in Indiana.

Along the way to energy independence, everyone would benefit: Farmers would get higher prices for their corn, people near the plants would get jobs and Indiana would reap the benefit from both. * * *

All of this makes the effort to erect two giant wind farms in Boone County, the state's second-windiest locale, worth watching. Putting in the 300-foot turbines is one thing in sparsely populated Benton County, but as Boone County's executive director of the area plan commission, Steve Niblick, said: "We are different than other counties with wind farms."

Changing the county's zoning will be hard enough, but if wealthy opponents appear -- and that's likely -- the two companies trying to assemble at least 14,000 acres for the turbines will have to adjust their plans.

If all 260 of the proposed turbines are put up, they will produce about 400 megawatts of power, or about as much as a midsize coal-burning plant. That's if the wind is blowing and there is an effective way to transport that power from the windmills to the grid.

MERRILLVILLE — BP has started full construction on a second phase of the Fowler Ridge Wind Farm in Benton County.

The second phase will have 133 turbines with a total capacity of 200 megawatts — enough to power 60,000 homes. It's expected to be online in the first quarter of 2010.

The turbines will come from GE and have a capacity of 1.5 megawatts each.

BP estimates the project will employ 400 people on site during peak construction.

"Today marks another significant investment commitment by BP Wind Energy as we continue to build out our wind portfolio," said John Graham, president for BP Wind Energy. "Wind power is a key component of delivering a diverse and adequate energy supply and is one of America's most plentiful and important low-carbon resources. We are pleased to be expanding the Fowler Ridge Wind Farm and once more to be working in the community of Benton County."

The wind farm is located about 90 miles northwest of Indianapolis.

BP said the balance of plant contract for the 17,000-acre site has been awarded to Mortenson Construction of Minneapolis.

Ind. Law - "Lebanon mulls sex-offender ban: City is drafting an ordinance to keep convicts out of parks"

LEBANON, Ind. -- This city in Boone County might follow other Indiana communities in adopting an ordinance to ban convicted sex offenders from local parks. * * *

More than 50 registered sex offenders live in the city, a handful within a few blocks of public parks. * * *

Several Indiana cities, including Plainfield, Greenwood, Lafayette, Michigan City and Jeffersonville, have banned sex offenders from municipal parks, only to be hit with lawsuits.

Last month, the Indiana Court of Appeals ruled Jeffersonville officials unconstitutionally barred Eric Dowdell, Clarksville, from attending baseball games in a public park. The court ruled the ordinance didn't apply to Dowdell because he was no longer required to be on the sex offender list. Although the court sided with Dowdell, it didn't strike down the ordinance.

In 2005, a Marion County man successfully sued Plainfield over its sex-offender ban, but Plainfield prevailed on appeal. Ken Falk, legal director of the American Civil Liberties Union of Indiana, argued that it constituted excessive punishment to close part of a community to a convict who had served his sentence.

The Plainfield case could be heard this year by the Indiana Supreme Court, which also might review the Jeffersonville case.

The ACLU's Falk said wanting to protect children was a noble goal, but he questioned whether such bans were effective.

"If a sex offender is going to a park (for criminal purposes), is a fine going to deter them from a crime they could go to prison for?" Falk asked.

"Some of these sex offenders may have committed their offenses years and years ago and may not be at risk of repeating their mistakes. . . . Where do we stop? Do we ban them from other public areas as well?"

Wednesday, July 15, 2009

Ind. Law - The Indiana State Police is NOT seeking to challenge the validity of the state golf cart law

Updating this ILB entry from earlier today, a knowledgeable reader has sent a note stating:

The Indiana State Police is NOT seeking to challenge the validity of the state golf cart law. The ISP did not take a position on the bill during the session.

I'm told there is one possible reason for the confusion:

When the bill legalizing golf carts passed, LSA inadvertantly left out the language barring golf carts from highways unless authorized by town ordinance. As a result, the actual language of HEA 1483 did not match the LSA-provided digest. ISP asked for corrective language in the budget, which basically added IC 9-21-8-57, the statute barring golf carts on highways unless permitted by ordinance.

Updating the list, this story today by Bob Shraluka of the Decatur Daily Democrat reports in a long story that begins:

Yes, the City of Decatur is going to allow the use of golf carts on its streets. With, of course, certain restrictions.

It was those restrictions which brought about a debate of one hour and 40 minutes at Tuesday night's special meeting called by

Decatur City Council. Golf carts and the 2010 budget (see separate story) were the only items on the agenda.

After considerable discussion among Mayor John Schultz, council members, City Attorney Tim Baker and five of eight people in the audience, some "guidelines" were arrived at for an ordinance.

Those guidelines will be turned over to Baker, who will attempt to expedite the drawing of an ordinance in order to present it to council at its next meeting, on Tuesday, July 21.

The guidelines stemmed from a detailed study made by Assistant Police Chief Greg Cook, who then turned over to council an "ordinance" to use as a starting point. From there, the long discussion ensued. It involved citizens Jim Coyne, Norm "Dougie" Kohne, Bob Brown, Jack Tussing and Ralph Smith, the latter a resident of Monmouth.

City officials are moving quickly on the issue because at the current time it is illegal to operate a golf cart on a city street. The Indiana General Assembly banned golf carts on all city streets, county and state roads, effective last July 1. While counties have no such option, cities and towns may implement their own ordinances to allow golf carts on their streets.

What the city ordinance is going to look like in final form will likely be as follows, although some changes could yet be made.

Also updating the list, Timberly Ferree of the Greene County Daily Worldreports that Linton Mayor Tom Jones hopes to have an ordinance ready for the August council meeting and he "stressed that golf carts are illegal in the city of Linton until an ordinance is passed." More:

Provisions within the state legislation require the driver of the golf cart to have a valid driver's license and the vehicle to have insurance as well as a revolving red or amber light or slow moving vehicle sign, Jones also said. But, the new state legislation is being taken to the supreme court. The state police want to fight the validity of the law.

That is the first the ILB had heard that -- does anyone have facts?

Vincennes is talking about an ordinance, according to this story July 13th at MyWabashValley.com, reported by Katie Shane. Some quotes:

The most recent state legislative session meant big changes for Vincennes lawmakers.

The Indiana General Assembly passed a law involving golf carts on the roadways.

Last year, the Vincennes City Council tabled discussion on a golf cart ordinance.

During Monday's council meeting members say they stalled in order to see what the state passed.

The decision?

Lawmakers say it's up to the city.

"There seemed to be some ambiguity at the state level on how the statutes were written," said Vincennes Mayor Al Baldwin. "Now that that has been clarified and went into effect July 1 it enables this community to write ordinances that controls the operation of golf carts on the city streets of Vincennes."

Now that the decision lies with city lawmakers the ordinance is back on the table.

And changes have been made since last July.

"We feel it's extremely important for these things to be regulated because golf carts as they come out of the factory they aren't very safe for the public streets," Mayor Baldwin said.

To make them safe the council proposes each cart must have headlights, turn signals, break lights, reflectors, mirrors and seat belts.

But before the council makes a final decision, they're questioning whether golf carts are even right for the city.

"Vincennes is about a large enough community as you can have and still be able to have golf carts on the street," Mayor Baldwin said. "Vincennes is kind at the tipping point; where we might be a little too big or possibly just big enough."

The ordinance was voted into committee for further discussion.

[Updated at 4:15 PM] Here is one more story, by Aubrey Woods of TribTown.com, covering Seymour and all of Jackson County:

MEDORA — Residents of this southwestern Jackson County community may soon be allowed to drive golf carts on streets.

“I think it’s a good idea,” Councilman Chad Beesley said during a council meeting Monday at Town Hall. “I’d like to see it passed.”

His comments came during a discussion about the issue of allowing residents to drive golf carts on the streets of this community of about 530 people.

Medora resident Ron Brock brought up the idea during the brief meeting.

He said the Indiana General Assembly recently passed a law allowing golf carts to be driven on streets and roads in cities and towns if the governing bodies adopt an ordinance allowing them.

He said several nearby communities, including Mitchell, Worthington, Paoli and Orleans, recently passed ordinances allowing golf carts on streets.

And what about the State Police story? The ILB has contacted the ISP Public Information Office and hopes to hear back shortly.

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

Appellant-defendant Jill Baird appeals the trial court’s judgment in favor of appellee-plaintiff ASA Collections (ASA) on its claim against her for delinquent dues and assessments on lots that she had purchased at a tax sale. Specifically, Baird argues that the judgment must be set aside because the trial court’s findings of fact and conclusions of law did not address the Indiana Nonprofit Corporation Act’s (Nonprofit Corporation Act) provisions regarding a homeowner association member’s personal liability for the nonpayment of dues and assessments. Baird also claims that the evidence did not support the judgment—including the award for attorney’s fees and costs—and that the trial court “was ambiguous in its ruling as to the application of the Fair Debt Collection Practices Act (FDCPA)” with regard to ASA’s claim and her counterclaims. Moreover, Baird contends that the trial court lacked jurisdiction over the case because Decatur County was the proper venue under the FDCPA.2 Finally, Baird claims that she is entitled to damages, attorney’s fees, and costs on her counterclaim that she advanced against ASA in accordance with the provisions of the FDCPA.

We conclude that Baird has waived her claim with respect to the application of the Nonprofit Corporation Act and find that ASA’s action against her was not subject to the FDCPA. Thus, venue in Dearborn County was proper, and Baird is not entitled to recover on her counterclaims. However, we also find that the trial court’s judgment award entered against Baird in the amount of $4,795.63 is erroneous. Therefore, we affirm in part, reverse in part, and remand with instructions that the trial court recalculate the amount of dues, assessments, and attorney’s fees and costs to which ASA may be entitled.

Chawknee Caruthers was convicted of murder and found to be a habitual offender. In this direct appeal, he contends that his trial counsel was ineffective. He also contends that the trial court abused its discretion by failing to sua sponte conduct an interrogation of the jury after defense counsel brought to the court‘s attention during trial that some of the jurors felt intimidated by actions attributed to the defendant, the defendant‘s family, and the victim‘s family. He also contends that the evidence is insufficient to support his conviction because the testimony of two witnesses is incredibly dubious. We reverse Caruthers‘ conviction because we conclude that the trial court abused its discretion by failing to investigate the content, extent, and possible prejudicial impact of the threats against the jury. However, because we also conclude that the incredible dubiosity rule does not apply and there is sufficient evidence to support his conviction, the State is free to retry him. * * *

NAJAM, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [that begins, at p. 19] I disagree with the Majority‘s conclusion that this conviction must be reversed because the trial court failed sua sponte to investigate the claim of juror intimidation, and therefore respectfully dissent.

Courts - Impact of the crime lab testimony decision [Updated]

The Washington Post today has an editorial on the impact of the June 25th SCOTUS decision in the case of Melendez-Diaz v. Mass. The headline is: "Avoiding Paralysis in Court: Virginia and other states should move swiftly to surmount a new hurdle to prosecutions."

A SUPREME Court decision last month involving crime lab reports is threatening to play havoc with criminal trials around the country, especially in drug cases. The justices ruled that lab reports -- for example, analyzing blood samples or cocaine -- cannot be introduced as evidence unless the analysts make themselves available to appear in court to vouch for the reports' accuracy and to submit to cross-examination. In some (though not all) states, the effect of the ruling may be to paralyze crime labs, which already face enormous backlogs and budget cuts. If lab analysts have retired or cannot make it to court, or if labs are overwhelmed by requests for analysts to testify, district attorneys in some places say they could be forced to drop prosecutions of violent crimes, possibly including rape and murder, as well as cases involving drugs and drunken driving.

The court's 5-4 decision was grounded in the Sixth Amendment guarantee that criminal defendants may confront opposing witnesses. It followed reports of shoddy work and tainted or fraudulent evidence from some crime labs. Writing for the majority, Justice Antonin Scalia acknowledged that the ruling may cause new burdens for prosecutors but predicted that "the sky will not fall." Justice Anthony M. Kennedy, writing for the four dissenters, predicted that criminals would walk free "on the most technical grounds" as a result of the decision.

Whatever the merits of each side's arguments, the important thing now is that states move quickly to ensure that cases involving serious crimes are not thrown out. Locally, the effects look manageable in Maryland, where lab analysts testify routinely in many jurisdictions; they look less so in Virginia, where The Post's Tom Jackman reports today that at least five drunken driving cases in Fairfax and Prince William counties have been thrown out after defense lawyers challenged the evidence based on the Supreme Court ruling. Prosecutors in Fairfax and Loudoun counties, among other large jurisdictions, are seeking continuances in cases subject to disruptions because of the decision. There is no guarantee that all judges will grant such continuances, which lends urgency to the problem.

State Sen. Ken Cuccinelli II, a Fairfax Republican who is running for attorney general, has called for a special session of the General Assembly to seek a legal remedy that would avoid mass disruptions and prevent guilty defendants from going free. His proposal would follow the blueprint of the handful of states unaffected by the court's ruling by requiring defendants to give advance notice if they intend to challenge a lab report. That would give prosecutors a chance to line up court testimony by lab analysts. Mr. Cuccinelli's suggestion may not be the only plausible solution, but it merits serious consideration.

Additionally, as noted in this ILB entry from July 1st, headed "Is Melendez-Diaz already endangered?", quoting Lyle Denniston of the SCOTUSLaw Blog:

[The] Court announced Monday that, next Term, it will review the case of Briscoe, et al., v. Virginia (07-11191). Here is the question raised in the Briscoe petition, filed in May of last year by University of Michigan law professor Richard D. Friedman:

“If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”

The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.

Legal experts and prosecutors are concerned about the results of last month's U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results.

The opinion, written by Justice Antonin Scalia, has prosecutors and judges shaking their heads in disgust and defense lawyers nodding with satisfaction at the notion that the Constitution's Sixth Amendment guarantee that defendants "shall enjoy the right . . . to be confronted with the witnesses against him" is not satisfied by a sheet of paper. * * *

States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there. * * *

The court might be looking to blunt the impact. It has agreed to hear an Alexandria case that could provide prosecutors with an escape hatch from the requirement of bringing lab analysts to court. The court will rule on whether Virginia's law requiring the defense to provide advance notice when it wants the lab analyst to testify is constitutional. But a ruling on that case probably will not come until next year, and many lawyers believe Virginia's law is deficient.

Ind. Gov't. - "BMV headaches ahead"

On July 9 this ILB posted this story on new requirements for those obtaining or renewing their driver's licenses beginning Jan. 1, 2010.

A lengthy editorial today in the Fort Wayne Journal Gazette points out just how onorous those requirements are. For instance:

Anyone whose name has changed from his or her birth certificate (married women, for example) must present proof of the name change. Someone who has changed names multiple times, through marriage and divorce, must show proof of each name change. * * *

Teen drivers or anyone who doesn’t receive bank statements or utility bills listing their own name and current address will need to be accompanied by someone older than 18 – with proper ID and residency documentation – who can sign a residency affidavit for the driver’s license applicant.

A side-bar sets out the requirements:

Identity source

Original or certified copy (1):

• U.S. birth certificate

• United States passport

• Foreign passport with a VISA and I-94 form

• Consular report of birth abroad

Social Security number

Provide 1

• Social Security number, original or certified copy (1)

• Social Security card

• W-2 form

• SSA-1099 form

• Non-SSA-1099 form

• Pay stub with name and Social Security number on it

• Social Security Administration documents establishing that you are ineligible for a Social Security number

Lawful status document

Original or certified copy (1):

• U.S. birth certificate

• U.S. passport

• Foreign passport with a VISA and I-94 form

• Consular report of birth abroad

Indiana residency documents

Provide 2:

• Computer-generated bill from a utility company, credit card company, doctor or hospital, issued within 60 days of the date you visit a license branch and containing your name and address of residence

• Bank statement

• Preprinted pay stub

• Medicaid or Medicare benefit statement

Change documents

If your legal name, date of birth or gender is different from information on a source document proving identity, you must present additional source documents showing the change. Acceptable source documents supporting a change include:

• Marriage license

• Divorce decree

• Court order approving a change of legal name or date of birth

The editorial concludes:

Well-intended state and federal officials have been pushed by a security industry intent on selling its high-tech identity solutions.

Indiana is among the states that have signed lucrative contracts with the out-of-state corporations, some of which have held conferences to coach BMV officials on how to convince lawmakers that tougher requirements are needed.

In other states, elected officials have objected to the costly and onerous demands made by the Real ID Act, which required states to issue a federally approved driver’s license that would become part of a national database and would be necessary for airline travel.

Groups as diverse as the American Civil Liberties Union and Gun Owners of America opposed the law, criticizing it as an attack on privacy rights.

The Obama administration is working to repeal and replace it with a cheaper, less-rigorous law – Pass ID – with state costs offset by federal grants.

Indiana officials, however, note that the state’s SecureID program “will exceed the security requirements” of the proposed federal law.

Indiana residents should ask whether the risks of identity theft and security breaches are truly great enough to justify the cost of identification procedures beyond those required elsewhere or, at the very least, be prepared for the inevitable BMV troubles ahead.

INDIANAPOLIS – A move to make Indiana driver's licenses and IDs more secure will have an effect on more than driving: It delays a legislative shift toward online renewals and complicates Indiana's strict voter ID law.

Bureau of Motor Vehicles Commissioner Andy Miller announced SecureID last week as a program to combat identity theft and comply with federal regulations passed after the Sept. 11, 2001, terrorist attacks. * * *

Essentially these requirements have already been on the books for those getting IDs or driver's licenses but now will affect all Hoosiers renewing or amending their licenses.

The Indiana Democratic Party is especially concerned that the new documentation requirements provide another voting barrier for Hoosiers.

Indiana voters must show state or federally issued photo IDs to vote - one of the strictest laws in the nation. * * *

The AARP expressed concern about the identity verification requirements, saying the new regulations would disproportionately affect older, poorer and minority Hoosiers.

In the past, the BMV was required to be open on the day of an election to provide IDs and licenses needed to vote. But now the permanent cards won't be available until they are mailed later.

The Republican and Democratic co-directors of the Indiana Election Division said in a memo that the interim paper document the BMV will give Hoosiers will suffice as ID for voting purposes.

Miller said "cheat sheets" will be provided to election workers to educate them about the changes.

He does concede, though, that the new program will slow down the effect of a law passed this year by legislators allowing for online driver's license renewals.

While the BMV will pass rules to allow for online renewal, the practical effect is that Hoosiers won't be able to use the option for several years because their next renewal will require a trip to the BMV with the necessary documents in tow.

"We talked about that during the legislative session," Miller said. "But once folks are documented, it's an option for the future."

INDIANAPOLIS – A now 7-year-old statewide court computer project with no firm timeline for completion or budget is starting to get the attention of key lawmakers – and it’s not the good kind of attention.

Plans to computerize records and link more than 400 civil and criminal courts around Indiana started in 2002. But after spending millions of dollars, only a few dozen courts in nine counties have hooked on.

“That’s not a very high-performance level,” said Sen. Luke Kenley, R-Noblesville, an attorney and chairman of the influential Senate Appropriations Committee. “I think we need to re-evaluate the project as far as where we are going and what we are going to do.

“Right now it’s kind of stagnant.” * * *

In fact, during the regular legislative session, a provision was inserted into a version of the budget that failed that would have moved the project to the State Budget Agency.

Currently, it is handled within the Indiana Supreme Court’s Judicial Technology and Automation Committee, known as JTAC.

Kenley said he wrote the provision because he is frustrated the project is moving so slow. The main budget conferees decided to wait before acting so they can learn why counties aren’t signing on and what the rest of the project will cost.

“We are making decisions one piece at a time instead of an overall look at the cost,” Kenley said. “Let’s institutionalize it so it’s a performing asset. Now that we are past the development stage and it’s operational, we need to be more standardized in operation.”

State Budget Director Chris Ruhl is trying to stay out of the fray, saying the discussion is between the legislative and judicial branch” and the administration doesn’t need or want to be in the middle of the discussion.

The goal of the project is ambitious: equip all Indiana courts and clerks with a 21st-century computer system to manage cases. The system will also connect the various court systems with one another, as well as police, state agencies and the public. * * *

Mary DePrez, director and counsel of trial court technology for JTAC, said it’s difficult to determine a timeline to deploy Odyssey to all 92 counties because of problems encountered with the quality of data contained in the existing systems. Given that, she estimated it could take five or six years to complete a statewide rollout of Odyssey.

She notes that regardless of the goals for the primary case management system, the committee has worked on some other smaller but important projects for the judicial system, such as a protection order registry and electronic ticketing application.

JTAC’s work is paid for by an automated record-keeping fee charged on most civil and criminal cases. It has risen over the years to $7. Currently about $7 million comes in each year, DePrez said.

The cost of the project has also been troublesome to pin down.

DePrez said that in 2002, JTAC projected that the cost to implement a uniform case management system to all the courts in the state was between $73 million and $113 million.

This estimate includes costs to be borne at both the state and local level.

Indiana Supreme Court Chief Justice Randall Shepard asked for a $3 increase in the fee this year, but legislators declined.

Instead, the fee will drop to $4 in 2012 under the new state budget. And it redirects some of the money from the fee on deferral and diversion cases to the Homeowners Protection Fund.

DePrez said the additional money was needed to expedite deployment of Odyssey to more than one county at a time, as well as paying to staff a 24-hour help desk that is currently only open during normal business hours.

Also, a key change was made where the state has decided to pay for the cost of data conversion, which was originally borne by the county.

Local courts pay no installation costs, training costs, license fees or annual maintenance costs for Odyssey. They are responsible for hardware that can run the system and network connectivity.

Allen County was thought to be joining the network in 2009, but Clerk Therese Brown now says that goal is likely not attainable. Brown will ask for about $250,000 from the County Council next week for an outside vendor to assess how “dirty” the county’s data is, and how long it will take to extract it for the new system.

Under Odyssey, data has to be in a specific format.

“We’re a behemoth, so it’s going to take a while,” Brown said. “There are lots of logistics and nuances in 92 counties. Everyone has slightly different practices.”

But Brown believes Hoosiers will be well-served by the new system, which will allow people to access court records for free on the Indiana Supreme Court’s Web site.

Others, though, aren’t interested.

LaGrange County Clerk Beverly Elliott said she doesn’t plan on going on Odyssey, which is not mandated at this time. She said LaGrange County bought and installed its own case management system in 2005 when the state project had stalled.

“I’m sure Odyssey will work fine for some counties, but we don’t have the money to sink into a new system when ours is working fine,” she said.

Mathias and DePrez acknowledged others are resisting as well. “Nobody likes change,” Mathias said. “Some are concerned because we are trying to build a system that enforces statutes and rules.”

For instance, he said some counties ignore a requirement to calculate interest on judgments, while others calculate interest in a different manner. Odyssey will standardize those and other facets of the system.

“I maintain this is the most extensive and important project the courts have undertaken in a century,” he said. “The need for public safety and efficiency cannot be overstated.”

Besides the Odyssey case management system (CMS), JTAC seems to spout a new project a month. Here is a list of what is currently on the table. What is the overall budget for all these projects, projected out into the future? Is there an overall plan?

JTAC picks up much of the cost of counties willing to sign on to the CMS system, so each county that signs on will add to the budgetary total. How much will operating the CMS system alone cost, when 92 counties are involved? How much will court fees need to be raised to cover this?

What about public, including commercial, access to the data that each county's CMS system produces? To my knowledge, no public input has been sought on this matter and little information about JTAC plans is available.

Right now the plan appears to be that a very small part of a county's court data will be funneled to the public via this search page set up on the Indiana Courts website. Format is predetermined. Otherwise, it appears that the system is completely closed.

For why this is a bad idea, I refer readers to this article: "Government Data and the Invisible Hand," 11 Yale J.L. & Tech. 160 (2009).

Ind. Decisions - Court of Appeals issues 5 today (and 6 NFP)

B.W. v. State of Indiana - "B.W. appeals the juvenile court’s order requiring him to register as a sex offender. Specifically, he argues there was not sufficient evidence to support such an order. Concluding there was clear and convincing evidence finding B.W. is likely to repeat an act that would be a sex offense if committed by an adult, we affirm."

We first address Appellants' contention that the trial court erred as a matter of law when it granted summary judgment to Plainfield Defendants on their counterclaim seeking declaratory judgment that the Town Ordinance was valid and enforceable. Specifically, they contend that Plainfield Defendants failed to state an actionable claim because Plainfield Defendants were attempting to use declaratory judgment to validate their own ordinance. * * *

We find Appellants' reasoning to be persuasive. While a municipality can file a declaratory judgment regarding its rights when the ordinance of another municipality or county affects those rights, the UDJA does not contemplate that the same municipality can sue to have its own ordinance declared valid. Plainfield Defendants did not have standing under the UDJA to file a counterclaim for declaratory judgment as to the validity of the Town Ordinance. As such, the Plainfield Defendants failed to state an actionable claim in their counterclaim for declaratory judgment that the Town Ordinance was valid. The trial court therefore erred in granting summary judgment in favor of Plainfield Defendants on a finding that the Town Ordinance was valid and enforceable.

Appellants next argue that the trial court erred, as a matter of law, when it held that Plainfield could exercise storm water jurisdiction pursuant to the Town Ordinance, and charge storm water fees for properties outside its corporate boundaries. Appellants first note that, while the parties each claim to have jurisdiction over Daum's property, the trial court failed to address the issue of whether Hendricks County and Plainfield both could validly claim such storm water jurisdiction. Appellants note the well-settled rule that two independent governments cannot “exercise the same powers within the same district, at the same time,” because there cannot be “two corporations for the same purposes with co-extensive powers of government extending over the same district.” * * *

As noted above, Daum sought declaratory judgment that the Town Ordinance violates or is inconsistent with Indiana law in four respects. Based on the above reasoning, we find one of Daum's four contentions to be dispositive and conclude that the Town Ordinance illegally charges a storm water fee on property located outside the corporate boundaries of Plainfield. We declare invalid all provisions of the Town Ordinance that authorize the imposition of storm water fees on properties located outside Plainfield's corporate boundaries and order Plainfield to return all fees paid pursuant to the Town Ordinance. * * *

Here, we find Daum's property does not fall within Plainfield's storm water jurisdiction, and Plainfield has no authority to impose a storm water fee on Daum's property. Finding, as we do, that there is no genuine issue of material fact that Daum's property is within Hendricks County's storm water jurisdiction and, therefore, is subject to storm water fees pursuant to the County Ordinance, we, therefore, remand this case to the trial court with instructions to enter summary judgment in favor of Hendricks County and against Plainfield. Reversed and remanded.

Jonathon Hoop brings this interlocutory appeal from the denial of his motion to suppress. The challenged evidence was seized during the execution of a search warrant, which was issued after an officer had a drug-detecting dog sniff the front door of Hoop's residence. We conclude that under Article 1, Section 11 of the Indiana Constitution, an officer needs reasonable suspicion to conduct a dog sniff of a private residence. Even if that requirement was not met in this case, the officers relied on the warrant in good faith. Therefore, we affirm. * * *

The dog sniff did not implicate Hoop's Fourth Amendment rights. However, under Art. 1, § 11, the officers needed reasonable suspicion to conduct a dog sniff of his residence. Although the State has not argued the officers had reasonable suspicion, it has established the officers relied on the warrant in good faith. Therefore, the evidence should not be suppressed, and the trial court's ruling is affirmed.

Michael Arthur v. Terryl Arthur (NFP) - "Michael Arthur appeals the order dissolving his marriage to Terryl Arthur. We remand with instructions to (1) clarify the parties’ respective responsibilities for attorney fees; and (2) to either explain why the property was divided unequally or to order an equal division of the property."

Ind. Decisions - No Indiana decisions from 7th Circuit today, but one issued upholding the Illinois abortion notice act as constitutional on its face [Updated]

There is no dispute that minors,
like adult women, have a constitutional right to an
abortion that may not be blocked by significant obstacles
from the State. Nor is there any doubt that the State has
an important interest in the welfare of its children that
justifies regulation of the abortion of minors that
would not be upheld if applied to adult women.
This case is merely the latest in a string of facial challenges
to one such regulation, the Illinois Parental Notice
of Abortion Act of 1995. Because we believe that this
iteration of the notice statute, and the Illinois Supreme
Court rule adopted to implement it, respect the Supreme
Court’s precedent regarding parental involvement laws,
we uphold the Illinois notice act as constitutional on
its face. * * *

The question presented here is a narrow one: whether
the Illinois Parental Notice of Abortion Act of 1995, 750
ILCS 70/1 et seq., is facially invalid because its judicial
bypass provisions lack language authorizing a state
court judge to issue an order allowing an immature minor
to consent to an abortion without notifying her parents,
where an abortion without notice would be in her best
interests.

[Updated at 3:00 PM]Here is a report on the decision by Andrew M. Harris of Bloomberg News.

Updating earlier ILB entries, including this one from March 30, 2009 ( "Meth lab cleanup a hassle for landlords"), and this one from May 10, 2009 ("Scores of Indiana homes contaminated by meth labs sit abandoned"), both of which bear...

The ILB had a comprehensive entry on March 30th, headed "Meth lab cleanup a hassle for landlords" and quoting a South Bend Tribune story. The entry begins with quotes from the August 6, 2006 ILB entry, headed: "Who should pay...

On August 6, 2006, the ILB posted this entry, headed: "Who should pay price for meth messes?" Here is what I wrote at the conclusion of the entry:Here is the proposed rule, #06-125, published in one of the final issues...

Posted in The Indiana Law Blog on March 30, 2009 11:35 AM

I ended the May 10th entry with this:

My thoughts. The ILB has a long list of entries dealing with meth cleanup. Rural properties and urban settings are both impacted. An effective answer needs to be found, right now it appears we have nothing of the sort. What approaches are being used in other states? What about a cleanup fund financed by a tax on the ingredients used to make meth?

It was not until February, more than five years after they moved in, that the couple discovered the root of their troubles: their house, across the road from a cornfield in this town some 70 miles south of Nashville, was contaminated with high levels of methamphetamine left by the previous occupant, who had been dragged from the attic by the police.

The Holts’ next realization was almost as devastating: it was up to them to spend the $30,000 or more that cleanup would require.

With meth lab seizures on the rise nationally for the first time since 2003, similar cases are playing out in several states, drawing attention to the problem of meth contamination, which can permeate drywall, carpets, insulation and air ducts, causing respiratory ailments and other health problems.

Federal data on meth lab seizures suggest that there are tens of thousands of contaminated residences in the United States. The victims include low-income elderly people whose homes are surreptitiously used by relatives or in-laws to make meth, and landlords whose tenants leave them with a toxic mess.

Some states have tried to fix the problem by requiring cleanup and, at the time of sale, disclosure of the house’s history. But the high cost of cleaning — $5,000 to $100,000, depending on the size of the home, the stringency of the requirements and the degree of contamination — has left hundreds of properties vacant and quarantined, particularly in Western and Southern states afflicted with meth use.

“The meth lab home problem is only going to grow,” said Dawn Turner, who started a Web site, www.methlabhomes.com, after her son lost thousands of dollars when he bought a foreclosed home in Sweetwater, Tenn., that turned out to be contaminated. Because less is known about the history of foreclosed houses, Ms. Turner said, “as foreclosures rise, so will the number of new meth lab home owners.” * * *

Federal statistics show that the number of clandestine meth labs discovered in the United States rose by 14 percent last year, to 6,783, and has continued to increase, in part because of a crackdown on meth manufacturers in Mexico and in part because of the spread of a new, easier meth-making method known as “shake and bake.”

There are no national standards governing meth contamination. Congress ordered the Environmental Protection Agency to publish cleanup guidelines by the end of 2008, but the agency is still reviewing a draft version. Without standards, professional cleaners say, it is easy to bungle a job that often requires gutting and repeated washing.

About 20 states have passed laws requiring meth contamination cleanup, and they use widely varied standards. Virtually all the laws hold the property owner financially responsible; Colorado appears to be the only state that allots federal grant money to help innocent property owners faced with unexpected cleanup jobs.

In other states, like Georgia, landlords and other real estate owners have fought a proposed cleanup law.

After the Holts bought their house here, Tennessee passed such a law. But since 2005, only 81 of 303 homes placed under a resulting quarantine have been cleaned, according to the state, which has one of the few registries tracking meth lab addresses. The law applies only if the police find a working meth lab at the house, and Jerry Hood, a lawyer and cleanup contractor hired by the Holts for the decontamination work, said many houses in the county had escaped the legislation.

Yesterday's Court of Appeals decision in the case of Joan Stoffel v. State of Indiana, et al. (ILB summary here) is the subject of a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly:

The Indiana Court of Appeals on Monday agreed with an earlier trial court decision finding that the Indiana General Assembly had the legal right to eliminate township assessors in midterm.

Huntington Township Assessor Joan Stoffel sued Gov. Mitch Daniels, the Indiana Department of Local Government Finance, the state of Indiana and several local officials after legislators passed a law in 2008 eliminating most township assessors and transferring the duties to the county assessor.

She claimed she was constitutionally protected during her term, which was set to run through 2010. And Stoffel alleged that legislators interfered with her contract with her constituents as an elected official. In October 2008, a special judge granted a motion to dismiss the case, but Stoffel appealed.

The Indiana Court of Appeals on Monday confirmed Stoffel’s right to sue but agreed with the trial court in dismissing the suit and denying her a preliminary injunction.

“We conclude that the trial court properly dismissed Stoffel’s constitutional challenge because she failed to establish that the General Assembly exceeded its authority in consolidating and transforming the offices of county and township assessors,” Monday’s ruling said.

The appeals court also ruled that Stoffel’s relationship with her constituents is not based on a contract, and therefore she cannot sue under the legal doctrine of tortious interference.

Monday, July 13, 2009

Ind. Law - "It's the Law: Bicyclists rights and responsibilities"

People in cars often complain about bicyclists who disregard stop signs, run lights and cause traffic backups by riding slowly in the roadway.

Bicyclists, in turn, complain about motorists who get impatient and yell at them or nearly run them over.

But Indiana law is clear -- bicyclists are treated just like motorists. Both groups need to safely travel together.

"Drivers must routinely share the roadway with bicycles. Bicycles are entitled to the same right of way and are required to observe the same traffic laws as operators of automobiles," states the Indiana Driver's Manual.

The manual states bicyclists are supposed to ride on the right side of the roadway and go the same direction as traffic. They are supposed to obey all stop signs, traffic signals and other laws. And they are supposed to use hand signals to indicate turns and stops.

Valparaiso police Sgt. Michael Grennes said bicyclists are generally not supposed to ride on sidewalks, but there are exceptions. Young children are often safer riding on sidewalks in certain locations, and bicyclists and pedestrians can share wide walking and bicycling paths that are made for both.

Law - Still more on "Concord Online Law School Places Second in National Moot Court Competition"

Updating this ILB entry from June 26th about Concord Law School, which is an online school. Kashmir Hill of Above the Lawwrites this afternoon: "Could There Be Accreditation for Distance Learning Law Schools in the Not-So Distant Future?" Among other things, he writes in the lengthy entry:

As we have mentioned before, the American Bar Association is in the midst of reviewing law school accreditation. Not only are they putting a focus on measuring student outcomes, they're reviewing Standard 306, which governs "distance education" a.k.a. online programs. From the ABA website:

Currently, there are not any law schools approved by the ABA that provide a J.D. degree completely via correspondence study.

The ABA Standards Review Committee plans to issue a new review of Standard 306 in Fall 2010.

Concord costs $9,500 per year. Recall the ILB entry from July 2nd headed "Passes NY bar, but denied character and fitness approval because of amount of outstanding student loan." The subject of that story had piled up law school debts of $400,000.

From the other side of the country, here is a story from The National Law Journal, by Leigh Jones, headed "8th Circuit: Attorney Can't Discharge $360,000 Student Loan Debt." A quote:

Jesperson, a 2000 graduate of Lewis & Clark Law School in Portland, Ore., had amassed $363,218 in student loan principal, interest and collection costs when he filed for bankruptcy in 2005. According to the ruling, he worked as a judicial clerk on the island of Saipan after graduation, then as an attorney with Alaska Legal Services and later as a legal temporary worker with Kelly Services.

So that gives a range -- $9,500 / year ($28,500) to attend the online school vs. the (hopefully) outer limits of $400,000 for three years at a traditional school.

IU Bloomington's current tuition (but slated to go up by 25%) is about $20,000 per year; IU-Indy's is about the same but is only slated to go up about 9% -- see this ILB entry from July 9th.

The point? Virtual schooling is now accepted at the grade and high school levels. Higher education costs can be very high. It does not seem like much of a jump to be seriously looking at accrediting virtual law schools.

pursues her claims at different levels, most important among them is her constitutional challenge against the General Assembly's enactment of legislation transferring the duties of township assessors to county assessors, thereby eliminating the need for certain township assessors. In a nutshell, as a township assessor herself, Stoffel contends that the legislature violated Articles 6 and 15 of the Indiana Constitution by abolishing an official position in the middle of an incumbent's term. Additionally, Stoffel pursues a claim for tortious interference by the General Assembly that interferes with the contractual relationship she has with her constituents. Procedurally, Stoffel asserts that the trial court erred when it decided Stoffel failed to present a redressable claim and failed to establish the prerequisites for preliminary injunctive relief. * * *

Stoffel's main argument is based on the Indiana Constitution and focuses on the timing as to when the statutory changes to the position of township assessor can take effect. While she acknowledges that the General Assembly has the authority to pass laws modifying or even abolishing the statutorily-created position of township assessor, Stoffel maintains that it nevertheless is unconstitutional to approve statutory changes to the elected position during the elected incumbent's term in office, “especially if those changes would explicitly or implicitly alter the duration of the term for which the incumbent was previously elected or prevent the incumbent from fulfilling the duties for which the incumbent was elected by public vote.” * * *

Pursuant to the preceding provisions, the township assessor office is a position provided for in the Constitution but whose actual existence depends entirely on statutory action by the legislature. Because of this specific grant of authority to the General Assembly, only a prohibition emanating from the Constitution will prevent the legislature from exercising its explicit power to create and abolish legislative offices. * * * However, Stoffel, in a very specific argument, seizes on Article 15, Section 3 of the Indiana Constitution and claims that the plain constitutional language which reads that “such officer shall hold his office for such term, and until his successor shall have been elected and qualified,” supports her position that she is entitled to hold her office for the full four-year term. We disagree. * * *

In sum, while the office of township assessor is provided for in the Indiana Constitution, its existence necessarily entails statutory action by the legislature. See Ind. Const. Art 6, § 3. As such, in light of the absence of a constitutional limitation, “the power to enact statutes necessarily entails the power to repeal or modify them.” Haverstock v. State Pub. Employees Ret. Fund, 490 N.E.2d 357, 360 (Ind. Ct. App. 1986), trans. denied Therefore, the Indiana General Assembly has the authority to curtail the duties, powers, and obligations of an elected township assessor, even during the middle of his elected term, and transfer these duties, powers, and obligations to the county assessor. We conclude that the trial court properly dismissed Stoffel's constitutional challenge because she failed to establish that the General Assembly exceeded its authority in consolidating and transforming the offices of county and township assessors. * * *

Although we hold that Stoffel has standing to bring her claim, we nevertheless affirm the trial court as we conclude that (1) the trial court properly decided that the legislature has the authority to create, abolish and alter the duties of township officers during the middle of their term in office; (2) the trial court properly denied Stoffel's claim based on the theory of tortuous interference; and (3) the trial court properly found that Stoffel failed to establish the prerequisites for being granted preliminary injunctive relief. Affirmed.

The Guardian Ad Litem (“GAL”) for minor child J.L.S. appeals the juvenile court's denial of W.S. (maternal uncle) and A.S.'s (collectively, “the prospective parents”) petition to adopt J.L.S. Specifically, the GAL argues that Indiana Code § 31-19-11-1(c) is unconstitutional as applied to J.L.S. because it provides that a court may not grant an adoption if a petitioner for adoption has been convicted of a host of felonies, including aggravated battery, without a determination of the child's best interests. Because an Illinois jury found W.S. guilty of aggravated battery, among other crimes, in 1996, the juvenile court denied the prospective parents' petition to adopt J.L.S. On appeal, we conclude that, according to W.S.'s criminal record before us, although the Illinois jury found W.S. guilty of aggravated battery, the Illinois trial court entered judgment of conviction against and sentenced W.S. for attempted murder. Because our legislature did not list attempted murder in Indiana Code § 31-19-11-1(c) as a felony that prohibits adoption, we reverse and remand this case for further proceedings. * * *

This then brings us full circle. Although Indiana Code § 31-19-11-1(c) lists several felonies that prohibit a court from granting an adoption, attempted murder is not one of them. While this appears to be an oversight by our legislature in light of the fact that felony battery and aggravated battery are listed, it is not the role of the judiciary to rewrite a statute. Because the crime of attempted murder does not appear to impede the prospective parents' adoption petition as the law now stands, we reverse and remand this case to determine whether adoption is still in the best interests of J.L.S. and whether the prospective parents are of sufficient ability to rear the child and furnish suitable support and education pursuant to Indiana Code § 31-19-11-1(a)(1) and (2). Reversed and remanded.

Bradley J. Smith v. State of Indiana - "Altogether, we cannot say that the trial court abused its discretion by relying on Smith's criminal history alone to sentence him to the maximum sentence, or by not finding any significant mitigating factors."

NFP civil opinions today (3):

Robert Bules and Brian Bules v. Marshall County and Marshall County Highway Dept. (NFP) - "A genuine issue of material fact exists as to whether Marshall County negligently placed the high water warning signs. The Act does not provide Marshall County immunity for the negligent placement of warning signs even if the resulting accident took place during bad weather conditions. Therefore, the trial court erred when it granted summary judgment in favor of Marshall County. Reversed and remanded."

Ind. Gov't. - More on "Medicaid problems swell in new system"

Updating yesterday's ILB entry quoting stories on the failings of Indiana's welfare privatization effort, an AP story today is subheaded "No Plan B in works if state pulls plug on IBM contract" by the Gary Post-Tribune. Some quotes:

INDIANAPOLIS -- Indiana welfare officials considering canceling the state's privately run welfare system have no backup plan in place and critics say it will be hard to undo the privatization of 1,500 state case workers more than two years ago. * * *

[Anne Murphy, secretary of the Family and Social Services Administration] told The Associated Press that her agency doesn't have a backup plan for running the welfare system that provides benefits to 1.2 million Indiana residents. Top state officials have started discussing what to do if the vendors' performance doesn't improve, but no plan has been made.

"We don't have a Plan B yet," Murphy said. "We're hopeful that they're going to make the changes and that there will be improvements." * * *

Daniels has repeatedly described the state welfare system as one of the worst in the country when he took office, but state Sen. Vaneta Becker of Evansville, a fellow Republican, challenged that. Managers in her home county solved constituents' problems within 24 hours, she said, even though a technology shortage meant case workers had to share phones and computers.

"It wasn't the worst system in the country," Becker said. "We had a good system in place."

She too said a big problem is too few case workers, but unlike Severns, thought it might be time to start over.

"I'm just not sure without rescinding the contract, things are ever going to get fixed," Becker said. "I just don't have much faith in the process they've set up in the first place."

Law - "For Some, the Downturn Keeps Divorce on Ice"

Jennifer Levitz of the Wall Street Journal has a story today headed "What God Has Joined Together, Recession Makes Hard to Put Asunder ". A quote:

Unwinding the ties of matrimony is rarely simple or inexpensive, but for many couples, the sour economy is complicating the process further.

Divorce lawyers say many couples are delaying the decision to dissolve marriages and are staying in unpleasant situations for fear of being on their own at a time of economic uncertainty. Others are being forced to live together after the divorce is final for financial convenience. That can strain the emotions and result in awkward negotiations about subjects like dating.

Ind. Decisions - "Judge's alternative sentence snarls murder case"

The Court of Appeals' July 10th decision in the case of Chijoike Bomani Ben-Yisrayl f/k/a Greagree Davis v. State of Indiana (ILB summary here) is the subject of a long story today by Jon Murray in the Indianapolis Star. Some quotes:

The case of Chijioke Bomani Ben-Yisrayl, who once sat on Death Row for the 1984 rape and killing of an Indianapolis woman, has seen many unusual turns.

The courts are still working to untangle what might have been the oddest twist, one that arose almost at the very beginning: a rare, added "just-in-case" sentence imposed in tandem with a death sentence. That decision has dogged officials for 25 years, and on Friday, the unresolved issue spurred the Indiana Court of Appeals to order a judge to impose a new murder sentence. * * *

A jury convicted Ben-Yisrayl -- then named Greagree Davis -- in September 1984 of raping and killing Debra Weaver, 21, who was abducted from her Northeastside home.

But the jury deadlocked on the death penalty. Then-Marion Superior Court Judge Roy F. Jones sentenced him to die and also imposed an alternative 60-year sentence for murder, just in case his capital sentence was later overturned.

A deputy attorney general agrees the use of an alternative sentence was odd. The Court of Appeals went further Friday, declaring it illegal.

Ind. Decisions - Two Indiana appeals decided today by the 7th Circuit

This case demonstrates that
even experienced, sophisticated business entities can
encounter difficulty when drafting carefully negotiated
loan documents. Since July 2007, the plaintiffs and the
defendant have been at loggerheads over the meaning
of just a handful of lines out of several hundred in their
five-page, single-spaced Note. Unfortunately, this appeal cannot bring their stalemate to an end, and more litigation
lies ahead. However, while disputes over the
meaning of language in loan documents can be somewhat
dry, this one is more interesting than most such cases.

The plaintiffs, special purpose entities that we refer to
as “Borrowers,” obtained several $1 to 2 million
mortgage finance loans from the defendant, or “Lender.”
Each of the loans required Borrowers to pay off the debt
at around 10% interest over 15 to 20 years. Borrowers
had the right to pay off the loans early, but subject to
a “Prepayment Premium” if they prepaid before ten
years into the loan terms. When Borrowers tried to
prepay the loans after only eight years, the parties disagreed
on how to calculate the Prepayment Premium.
Their dispute led to this diversity action, in which the
parties seek a declaratory judgment as to the correct
interpretation of the Prepayment Premium. The district
court granted summary judgment in favor of Lender,
concluding that the unambiguous contract language
supported Lender’s interpretation. We conclude, however,
that the contract is ambiguous, making it inappropriate
to resolve the meaning of the contract at the summary
judgment stage. We therefore remand for a trial on
the question of the parties’ intended meaning of the
Prepayment Premium.

In 1998, Demetrius Jackson was
convicted of possession with intent to deliver crack cocaine.
Ten years later, Jackson moved to have his sentence
retroactively amended pursuant to amended Sentencing
Guideline § 2D1.1, which reduced the penalties
for most crack cocaine drug offenses. The district court
denied the motion, finding that it had no authority
to modify the sentence because Jackson was sentenced under the career offender provisions of the Guidelines,
U.S.S.G. § 4B1.1, which were not amended. On appeal,
Jackson claims that he no longer qualifies as a career
offender and, thus, the district court erred in finding
that he was ineligible for a sentencing reduction.
We affirm.

This week's oral arguments before the Court of Appeals (week of 7/13/09):

None currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 7/20/09):

Tuesday, July 21st

1:30 PM - National Union Fire Insurance Company, et al vs. Standard Fusee Corporation, et al - Standard Fusee Corporation (SFC) is a Delaware corporation headquartered in Maryland that currently manufactures flares at sites in Indiana and Maryland, among other places, and formerly did so at a site in California. One ingredient in flares is perchlorate, and perchlorate contamination has been discovered at or around the Indiana and California sites. As a result, SFC has incurred certain defense costs, and SFC filed this lawsuit in an attempt to have its insurance providers cover those defense costs. In addition to the insurance coverage questions, a preliminary procedural issue is whether the substantive law of Indiana or of Maryland should apply. The Marion County Superior Court granted SFC's motion for partial summary judgment, declaring (1) that Indiana law applies and (2) that, under Indiana law, the insurance companies have a duty to defend SFC. The insurance companies now appeal. The Scheduled Panel Members are: Judges Riley, Kirsch and Mathias. [Where: Supreme Court Courtroom - WEBCAST]

Friday, July 24th

10:00 AM - Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General - Subhen Ghosh was suspended and ultimately terminated from his employment with the Indiana Department of Environmental Management for misconduct on the job. On Ghosh's appeal, the State Employee Appeals Commission upheld Ghosh's termination. Ghosh's petition for judicial review of that decision was dismissed after an appeal to this court. Meanwhile, the State Ethic's Commission determined a complaint filed by the Indiana Office of the Inspector General against Ghosh regarding his misconduct was proven and imposed a fine. Ghosh filed a petition for judicial review. The trial court upheld the SEC's decision and found that Gosh's attempt to litigate the propriety of his termination was estopped due to the earlier proceedings. Ghosh now appeals. The Scheduled Panel Members are: Judges Darden, Bailey and Robb. [Where: Indiana Court of Appeals Courtroom - WEBCAST]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

Sunday, July 12, 2009

Law - "Illinois Law Dean Announces New Admission Policy in Wake of Scandal"

University of Illinois College of Law Dean Bruce Smith, in an effort to counter a scandal that indicated that some applicants to the college were admitted with the help of influential people, said on Thursday that no applicant will get special treatment under a new policy.

In a letter to staff, faculty, students and alumni, Smith said the new policy will also require the college to respond only to inquiries on the status of an application if the inquiry is made by the applicant. In addition, the school will now accept only formal letters of recommendation that are made to the admissions office and placed in the applicant's file.

"Under my deanship, the college will give no 'special' consideration, treatment, or procedure to any application," Smith said in the letter. "All applicants will be treated equally."

In addition to the existence of the so-called clout list on which the special applicants were named, at least one of the school's trustees, Frances Carroll, testified at an Illinois Admissions Review Commission hearing last week that she would sometimes make inquiries about the status of particular applications directly to the school's top officials.

The letter follows a series of Chicago Tribune stories that revealed that the university kept a list of applicants, including those to the college of law, who were backed by influential state officials, university officials or large donors. Applicants on the list were given special consideration and in some cases admitted to the university despite subpar qualifications. Illinois Gov. Pat Quinn last month set up the special admissions review commission to investigate the matter and has called on various officials to testify.

A long story in today's Vincennes Sun Commercial deals with drug forfeiture funds. (Readers will recall the long-running dispute in Terre Haute over such funds.) Some quotes:

A judge wants to see bank records that may contain information about missing money from the sheriff's department's drug seizure fund.

Judge William Weiker of Daviess County, who is presiding over the matter, wants records related to two accounts, one at Old National Bank and another at Regions, to be turned over to the court. The drug seizure fund is an account at Old National Bank; the judge wants records of transactions dating back to Jan. 1, 2003. Information from the Regions account dates from Jan. 1 to June 30, 2003.

Attorney Matt Parmenter, who was employed by the county prosecutor's office to handle some of the forfeitures and sales of drug seizure property, as well as money seized from drug arrests, has filed motions to block the release of any records kept in his office. Parmenter has cited attorney-client privilege because they pertain to work he did as a contractor with the Knox County prosecutor's office.

County officials believe some records in Parmenter's office hold information about missing money and property.

Judge Weikert has ruled that as a contractor with the government, those records are subject to review.

Parmenter has 30 days from the receipt of the court's order to provide the requested information.

More from the story:

The records being sought from Parmenter are the last of a large batch that in 2007 led to a lawsuit brought by the county council to force their release from the sheriff's department and prosecutor's office.

Council officials have recently been given digital copies of those records after a long legal battle that went all the way to the Indiana Court of Appeals and which the council won.

Council members Bob Lechner and Tim Ellerman began looking into transactions in the drug seizure fund after a State Board of Accounts audit turned up an overdraft of $52,000.

When the county council hired private accountant, Curt Coonrod, to determine why the account was overdrawn, Lechner said "doors started slamming shut."

A 23-page report prepared by Coonrod in 2007 detailed his findings to the county commissioners. Coonrod found that multiple transactions out of the drug seizure fund were unrecorded and that Parmenter, when acting as attorney to the county prosecutor, executed the sale of forfeited property seized by the sheriff's department in drug arrests and deposited the money from those sales into the drug seizure fund, not the county general fund, as required by state statute.

The report also found that Parmenter, in making payments with money from seized assets, did not itemize some payments, labeling them merely as "out-of-pocket expenses" with no other explanation.

Kurt Webber, an Indianapolis attorney who filed suit on behalf of the county council, said at the moment the only thing the council is trying to do is account for all the money in the drug seizure fund and Parmenter's private bank accounts to make sure the records match up.

"What we're trying to do is match up the money flow from the sheriff's department to Parmenter's office," said Webber. "For every check that Parmenter wrote there should be a record in both accounts."

Webber said no accusations of wrongdoing have been filed.

Numerous attempts to contact Parmenter about the report and the judge's request were unsuccessful.

The "long legal battle" resulting in the COA decision of Knox County Council v. John Sievers, et al., summarized in this Nov. 7, 2008 ILB entry.

FISH LAKE - A La Porte County man driving a golf cart along a state highway was found to be drunk.

Jody Lovekin, 48, 2936 S. County Road 800 East, is charged with operating a vehicle while intoxicated. The misdemeanor offense was elevated to a Class D felony due to a prior drunk-driving conviction within the past five years, police said.

Sheriff's Deputy Derek Allen was on Indiana 4 near Fish Lake at about 2:30 a.m. Thursday when he spotted a vehicle a radar gun revealed was traveling 16 miles per hour along the highway's edge. The officer got closer, then realized the slow-moving vehicle was a golf cart.

Because of a new state law that prevents golf carts on roadways, police said a traffic stop was made, and it was discovered Lovekin had been drinking. A certified test later revealed a .15 percent blood alcohol level.

Wait, does this mean that without the new state law, the golf cart would have been allowed to proceed, unimpeded?

1. On June 27th, Frank Cerabino of the Palm Beach Postreported in a story that began:

The holes in the soles of a lawyer's shoes have become a legal issue during a civil trial in the Palm Beach County Courthouse.

Defense lawyer Michael Robb has been showing up in Circuit Judge Donald Hafele's courtroom with a pair of black tasseled Cole Haan loafers that have visible holes in both soles.

"I've had pretty good luck with these shoes," Robb said. "They're comfortable and I wear them."

But they bothered the opposing lawyer, Bill Bone, who characterized the shoes in a court motion as part of Robb's trial strategy.

"Part of this strategy is to present Mr. Robb and his client as modest individuals who are so frugal that Mr. Robb has to wear shoes with holes in the soles," Bone wrote. "Mr. Robb is known to stand at sidebar with one foot crossed casually beside the other so that the holes in his shoes are readily apparent to the jury who are intently watching all counsel and the Court at that moment."

2. On July 4th the same reporter wrote this column. Here are just some quotes from the reporter, explaining that he was not the blame for the mistrial:

I'm going to reconstruct the events that led to a mistrial of a Palm Beach County civil case this past week, a case in which a $2.2 million verdict in a personal injury trial was set aside.

You may have read a story about the mistrial on Thursday titled "Judge calls mistrial after column spurs discussion of case."

The column in question was the one I wrote in last Sunday's newspaper. Normally, I don't engage in backstage tours of the twin worlds of journalism and the judicial system. But I'm making an exception here, because I find the exploration of what happened here fascinating, troubling and ultimately enlightening in ways that far outstrip what started out as a humor column.

On the Friday before last, I received an e-mail from a casual acquaintance, a non-lawyer who was writing to me from another state.

"Someone forwarded this to me ..." he wrote, "and I thought it would be right up your alley."

Attached to the e-mail was a two-page motion filed by West Palm Beach personal injury lawyer Bill Bone, who was trying to get a judge to order the opposing lawyer in his trial, Michael Robb, to stop wearing shoes with holes in their soles. * * *

I spoke to Robb, who found it all very funny, and supplied me with a slew of quotable lines about his beloved 12-year-old pair of Cole Haan loafers. He even offered to spell Cole Haan for me, and at the end of the conversation asked me if I had enough fodder for my column.

More than enough. I then called Bone, whose reaction couldn't have been more opposite.

He immediately told me that if I wrote about the case, there would be a mistrial, and that it is unethical for me to write about an ongoing case, adding that he wondered how I could go to sleep at night and that this is why newspapers are in financial trouble.

After his blustery monologue, he ordered me not to use anybody's name in my column, and by the way he was saying it, I think he really thought he had the power to do that.

I explained that I was writing about a public document filed and discussed in open court, and that he doesn't operate in a star chamber, where public knowledge of what goes on in court is embargoed until all legal appeals are exhausted. And that he doesn't have to talk to me if he doesn't want to, but his shoe battle with the other lawyer was going to be my column for Sunday.

About 10 minutes after talking to Bone, Robb called me from North Carolina. He wasn't jokey anymore. He told me he didn't think it was a good idea to run my column on Sunday. I told him I was.

His office later that afternoon faxed me a letter.

"We are days away from a verdict and again I am asking that you do not run the story until a verdict has been rendered in this case," he wrote. * * *

I need to pause here to note that after years of covering both state and federal court, in matters far more serious than this, I had never been told that I shouldn't write about an ongoing case until a verdict had been reached.

Why? Because the court's are open to the public, and with rare exceptions, what goes on in the courthouse is not subject to whims of trial participants who may or may not want anybody looking over their shoulders.

I also called the judge in the case, Palm Beach County Circuit Judge Donald Hafele, to tell him about the upcoming column. By then, it was about 3 p.m. on Friday. The phone call went to the answering machine of his judicial assistant. I identified myself on the message, and told her that I was writing about a case in trial with the judge, leaving my phone number for a call back.

I didn't hear back from the judge. But I exchanged a couple of e-mails with Bone on Saturday, the day before the column ran. He was far more conciliatory and reasonable this time.

"It is my belief that innocent people could be hurt in the name of humor and entertainment when any story that doesn't depend upon timing like this story will have the same entertainment value if told next week," he wrote.

Fearing that a juror would read the column and cause a mistrial, he added: "Could you please put a warning at the top of the article that says something like: 'This is an actual legal case in progress. If you are sitting on a Palm Beach County Jury, don't read my column today.'"

Did I have to write the column? No. Would a warning at the top of my column stop a juror from reading it? Maybe.

But from my perspective, holding the column or putting a warning at the top of it went far beyond my responsibilities here. * * *

Well, maybe one of the jurors had already read it? Maybe. But what caused the mistrial was that on Monday morning, the jurors were allowed to mingle with each other before the start of court, and one of them brought in my column and read it to the others while they were left to their own devices in the jury room.

They discussed "the case" before deliberating on a verdict. Judge Hafele allowed them to reach an advisory verdict, but at the urging of one of the lawyers, he declared a mistrial.

3. The motion itself, titled "Plaintiff's motion to compel defense counsel to wear appropriate shoes at trial" is available at the end of this July 9th Above the Lawentry.

Ind. Law - More on: Enthusiasm builds over use of golf carts in smaller communities

"Golf carts expected to be discussed at Linton Council meeting on Monday night" is the heading to this story July 10 in the Greene County Daily World, reported by Timberly Ferree:

Look for golf carts to top the discussion during Monday's Linton City Council meeting.

Linton Mayor Tom Jones provided the details in a Thursday morning interview with the Greene County Daily World.

"We'll talk about a golf cart ordinance. We're not ready to pass one yet. It may be August or September when we're ready," Jones explained.

In April, the state approved legislation allowing golf carts to be driven in towns and cities beginning July 1 if there is a local ordinance allowing it.

"It's not legal as we speak today in Linton. It's not legal until the city passes an ordinance," Jones said.

Provisions within the state legislation require the driver of the golf cart to have a valid driver's license and the vehicle to have insurance as well as a revolving red or amber light or slow moving vehicle sign.

"I'm not opposed to them (golf carts) at all. But I want to make sure we do it right. I think it's a good idea as long as we have the infrastructure to support it," the mayor added.

Discussion with the police department on the issue is also needed, he noted. The matter is currently being researched.

Chandler Indiana is the focus of this Evansville News 25story by Jennifer Cahill that begins:

Starting July 16th, cars and trucks in Chandler will have to share the road with golf carts and off-road vehicles. But NEWS 25 learns drivers will have to follow some major rules and regulations to make those vehicles road-worthy.

"Four way flashers. A horn. I'm just tried to make it street legal is what I tried to do." With headlights, turn signals, brake lights and rear view mirrors installed, Jim Hutchcraft is ready.

"I've got a clock. I even made a copy of my (handicap) sticker and put it up there," he says.

The City of Chandler's new off-road vehicle and golf cart ordinances take effect July 16th. When that happens, ATV's, 4-wheelers and golf carts, like Hutchcrafts, will share the road with cars and trucks.

"The gas is so much cheaper. It hardly uses any gas at all, you know. It'll be great for when you want to get out in the evening at sunset and take a little ride. Just relax," Hutchcraft says.

"For errands like the store, the post office, the bank. Everything is in close proximity," says golf cart owner, Bil Musgrave, of how he plans to use his.

The ordinance will create a new way of life for Chandler residents, but also a whole new set of laws for police to enforce.

"We don't know what we're going to come in to, but it's probably going to be people not driving where they're supposed to and not staying where they're told they can ride it," says Chandler Police Officer, Tim Patton.

To drive 4-wheelers and golf carts under the new laws, the driver must be at least 18, have the vehicle insured, and get a city permit for 15 dollars.

The vehicles are banned from Highway 62, except to cross it at the town's one stop light.

Golf carts are limited to roads with speed limits of 30 miles per hour or less.

"We're going to enforce it the way it needs to be enforced," Patton says.

From the July 9th Greencastle Banner Graphic, this report by Jared Jernagan:

Bainbridge town council members reviewed a draft of an ordinance to regulate golf cart usage in town.

The ordinance will allow the use of golf carts on the streets and alleys of the town of Bainbridge with the exception of S.R. 36. It defines a golf cart as a four-wheeled motor vehicle designed to transport one or more individuals and golf clubs for the purpose of playing the game of golf on a golf course.

Any carts operated in Bainbridge must display either a slow moving vehicle emblem or a red or amber flashing lamp. Drivers must have a valid driver's license and proof of liability and financial responsibility.

Violations of the ordinance will result in a fine of $250 for the first offense and $500 for subsequent violations.

Council members asked city attorney Jim Ensley to add that the carts must have headlights and tail lights, follow all traffic rules and regulations, and be properly seated in a seat with no body parts extended outside the cart.

The first reading of the ordinance will take place at the next town council meeting.

Ind. Courts - More on: "Federal Judge Allen Sharp dies "

Updating preliminary coverage from July 10, the South Bend Tribune today has a lengthy story by Margaret Fosmoe, headed "Tough-minded U.S. District Judge Sharp dies at 77." It begins:

U.S. District Judge Allen Sharp is remembered as a no-nonsense judge who loved his job, revered the jury system and was an active jurist until his death.

Sharp, who served the Northern District of Indiana since 1973, died Friday at his Granger home. He was 77.

Sharp, a Republican, was appointed by President Nixon in 1973 and served as chief judge from 1981 to 1996.

He presided over some of this area's highest-profile cases, including former assistant football coach Joe Moore's age-discrimination suit against Notre Dame, and the trial of Joseph Paul Franklin in the shooting of Urban League President Vernon Jordan.

A Marion County deputy prosecutor was arrested Saturday in Broad Ripple on preliminary charges of driving while intoxicated and leaving the scene of an accident.

Gillian DePrez, 28, Indianapolis, had a blood-alcohol level of 0.15 when police stopped her on Winthrop Avenue, just south of 61st Street, just after 3 a.m., an Indianapolis Metropolitan Police Department report said.

DePrez had been driving east on 61st when her vehicle struck another car, police said. DePrez backed up and drove away, police said. She turned south on Winthrop before being pulled over by a police officer, the report said.

Police officers smelled alcohol on DePrez's breath before administering three field sobriety tests, which she failed, the report said. DePrez then agreed to take a certified test, which produced the 0.15 reading, according to the police report.

Ind. Gov't. - "Medicaid problems swell in new system"

Indiana's nearly 2-year-old experiment with a privatized welfare system appears to be failing.

The backlog of pending Medicaid applications has ballooned in counties where welfare is handled by private contractors. From May 2008 - after the most recent wave of counties joined the new system - to December 2008, pending cases increased 86 percent. In counties working under the old system, the backlog increased only 16 percent, according to a Journal Gazette analysis of state data.

And the contractors, led by IBM Corp., missed deadlines for processing Medicaid applications at twice the rate of counties that haven't joined the new system.

In December, nearly 60 percent of applications processed under the new system were overdue. * * *

The problems with Medicaid mirror issues the contractors have in processing food stamp requests. Last year, Indiana ranked among the five worst states in improper denials or terminations of food stamp benefits. In April, The Journal Gazette revealed that during the final quarter of 2008, the FSSA failed to process almost a third of food stamp applications within its goal of two months, the slowest processing time since the state privatized some counties. * * *

No new counties have been brought into the system since May 2008 because of problems so critical the state's Family and Social Services Administration announced Tuesday that IBM Corp. must show how it's going to improve. If the state isn't satisfied with IBM's plan to fix he system, it could end its 10-year, $1.16 billion contract. * * *

Evansville lawmakers joined forces during the regular session to call for changes to the welfare system, and their bipartisan pleas were echoed by social workers and hospital administrators who say call center workers hang up when they get frustrated and provide inaccurate information to clients and health care providers.

When Vanderburgh County was part of the first rollout in October 2007, FSSA data show 219 cases were pending beyond allowable deadlines. By the end of 2008, the total had swelled sevenfold, to more than 1,500.

The daily complaints have turned lawmakers into caseworkers and have many people questioning why a functioning system in many parts of the state had to be overhauled.

Complaints have been so common that a measure calling for an independent audit of the welfare privatization was one of only three bills filed during the special legislative session last month. Riecken backed off House Bill 1003 in deference to the special session's explicit purpose - passing the state budget. But she continues to push for hearings around the state to expose shortcomings in the system, which she says too often trips up on the first crucial step of submitting an application.

"We have to continue working on this problem until it is solved," Riecken said.

Also today, the Journal Gazette has a long editorial, titled "The welfare privatization debacle." It begins:

Gov. Mitch Daniels likes to say that he inherited “the worst welfare system in the nation.” But two extensive reviews of data by The Journal Gazette suggest it has grown worse under his watch.

The latest shows staggering increases in Medicaid application backlogs in the counties where the Indiana Family and Social Services Administration turned eligibility processing over to IBM Corp. Angela Mapes Turner’s report on Page 1A finds that counties under the new system had tardiness rates more than double that of counties operating under the system the governor criticized.

Turner’s April investigation found that almost a third of the state’s food stamp applications were not processed within two months, missing federally required deadlines for timeliness and leaving struggling families to seek help elsewhere.

After The Journal Gazette requested Medicaid timeliness figures, FSSA Secretary Anne Murphy announced that the state might have to cancel the $1.16 billion contract with IBM and its subsidiary, Affiliated Computer Services. They have been asked to submit a “corrective action plan” to address problems. If there are no improvements by the end of September, the state could take steps to cancel the 10-year contract, she told The Associated Press last week.

The move is welcome but long overdue. Social service advocates warned state officials before the contract was awarded in 2006 that it was being pushed through too quickly, with no opportunity for public input and no cost-benefit analysis to determine whether it would produce savings or improvements. Their concerns were based on a botched welfare privatization deal in Texas.

Then-FSSA Secretary Mitch Roob pushed ahead. The “eligibility modernization project” contract was signed and rolled out in October 2007 in a 12-county area. By the following spring, hundreds of people were showing up at meetings to complain about problems with the system, which replaced most state caseworkers with a Web site and call center. The situation grew worse when northeast and southwest Indiana counties went online in the spring of 2008.

Neat the end of today's editorial is this quote:

Enough time has passed in testing this business-model approach to administering vital public services. The results are not encouraging by any corporate measure and uncompassionate by any humane measure.

Saturday, July 11, 2009

Law - More on "Private data tossed in the trash by businesses trigger a crackdown"

In Indiana, the attorney general has filed 36 complaints with the state pharmacy board against 18 pharmacies -- including CVS and Walgreens Co. -- and 18 pharmacists for allegedly throwing personal medical information into the trash.

Under the agreements, negotiated by the Attorney General’s office and representatives of the Indiana Board of Pharmacy, both CVS/pharmacy and Walgreen Co. agree to implement extensive employee training, management policies and detailed reporting to provide greater safeguards so that customers’ personal information will not be improperly disclosed.

Both proposed agreements were filed today and are scheduled for consideration by the Board of Pharmacy on Monday.

“By locking in new records-handling procedures, the agreements create a new level of protection for customers of these pharmacies that their private medical information will remain just that – private and confidential,” Indiana Attorney Greg Zoeller said in a statement.

The cases involved 10 CVS pharmacies and six Walgreens pharmacies in Indiana.

In 2006, Indianapolis television station WTHR (Channel 13) aired news segments about customers’ prescription records being discovered in outdoor trash bins where they could have been found and used to commit identity theft, although no actual consumer is known to have been victimized.

A federal judge has ruled that candidates for judicial office in Indiana may fill out questionnaires, such as those distributed by Indiana Right to Life, but they must be careful.

In a 73-page ruling issued this week, U.S. District Judge Theresa Springmann in Fort Wayne said the recently updated rules governing the behavior of Indiana’s judges strike the right balance between the judges’ right to free speech and Hoosiers’ right to a fair and impartial judiciary.

“In this case, the free speech and association rights of judges and judicial candidates … bump into the interests of the people of Indiana in having a judiciary that is independent, fair, impartial and competent,” Springmann wrote.

“It is apparent … that the Indiana Supreme Court expects judges and judicial candidates to exercise good judgment and act judiciously when they make statements in office or campaign for office. This is not unreasonable.”

The story continues:

In May 2008, Indiana Right to Life, ... along with Warsaw lawyer Torrey Bauer and Marion County Superior Court Judge David Certo, sued again. The group asked for a judge to bar enforcement of the judicial canons against those who had answered a questionnaire sent out by the anti-abortion group and feared they would be disciplined by the state’s judicial commissions.

The plaintiffs also challenged the constitutionality of the rules on judicial candidates stating political views.

While that lawsuit was pending, the Indiana Supreme Court adopted a new code of conduct, which came into effect in January, modeled after a 2007 code developed by the American Bar Association. And it changed some of the rules about candidate speech.

Springmann dismissed the portion of the lawsuit relating to the old rules and ruled in favor of the state’s highest court in the other parts of the complaint.

The new rules, Springmann wrote, are narrowly tailored to serve fairness, impartiality and integrity as well as principles of justice and the rule of law.

“(O)nly speech that is inconsistent with impartiality is prohibited in the 2009 Code,” Springmann wrote.

The ruling is the first of its kind in the nation to examine the new American Bar Association codes, said George T. Patton Jr., the Washington, D.C., attorney hired by the state of Indiana.

The new rules allow judicial candidates to say they are against abortion or will be tough on crime as long as they do not promise to always rule a certain way, Patton said.

“Imagine yourself before a judge who promised to always rule one way before he ever heard your case,” he said. “People need to remember that … what’s really at stake here is the nature of the judiciary here in Indiana.”

And state officials are obviously pleased.

“Our view is that this lawsuit is about reasonable efforts to maintain judicial independence,” Indiana Solicitor General Tom Fisher said. “The canons are crucial to maintaining judicial integrity, and we’re grateful she upheld them.”

Attempts to reach the plaintiffs’ Terre Hauteattorney, James Bopp, were unsuccessful Friday.

Ind. Decisions - Transfer list for week ending July 10, 2009

Courts - DC Police Use of Vehicle Checkipoints enjoined by DC Circuit

A panel of the DC Circuit today, in the case of Mills v. D.C., granted a preliminary injunction in a case challenging the "neighborhood safety zone" system of police roadblocks recently instituted in the District of Columbia, finding that there was strong likelihood of success on the merits - the constitutional challenge:

SENTELLE, Chief Judge: Four District of Columbia citizens
(appellants) filed a motion for a preliminary injunction to enjoin
further implementation of a police checkpoint program in the
District of Columbia. The district court denied the motion for
a preliminary injunction, holding that the appellants failed to
show either irreparable harm or a substantial likelihood of
success on the merits. Because we hold that the appellants’
showing of irreparable harm is sufficient, and conclude that
appellants have shown a substantial likelihood of success, we
reverse the district court and remand for further proceedings.* * *

In short, we conclude that appellants have established the
requisites for the granting of a preliminary injunction. They
have made a particularly strong showing of the substantial
likelihood of success on the merits and that they would suffer
irreparable injury if the injunction is not granted. The district
court did not address the other two elements of the preliminary
injunction test. Accordingly, we reverse the district court and
remand for further proceedings.

The Court relied heavily on a case out of Indianapolis:

Most plainly controlling of the case before us is the
Supreme Court decision in City of Indianapolis v. Edmond, 531
U.S. 32 (2000). In Edmond, the Court considered a checkpoint
program conducted by the City of Indianapolis in an effort to
interdict unlawful drugs. Under the stipulated facts of the case,
officers operating pursuant to directions issued by the chief of
police would for a limited period of time stop all vehicles
without particularized suspicion, look for signs of impairment,
conduct an open view examination of the vehicle from the
outside, and have a narcotics-detection dog walk around the
outside of each stopped vehicle. After observing that “[a] search
or seizure is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing,” the Court observed
that “we have recognized only limited circumstances in which
the usual rule does not apply.” Edmond, 531 U.S. at 37. The
Court recognized that it had in the past upheld the
constitutionality of a checkpoint stop for border protection, see
Martinez-Fuerte, supra, and “a sobriety checkpoint aimed at
removing drunk drivers from the road,” id. (citing Sitz, 496 U.S.
444). But the Court stressed that “[w]e have never approved a
checkpoint program whose primary purpose was to detect
evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S.
at 41. The Court then concluded that “[b]ecause the primary
purpose of the Indianapolis checkpoint program is ultimately
indistinguishable from the general interest in crime control, the
checkpoints violate the Fourth Amendment.” Id. at 48. It is this
rule which governs the present case, and as the purpose of the
NSZ checkpoint program is not immediately distinguishable
from the general interest in crime control, appellants’ argument
that the seizures were unconstitutional appears headed for
ultimate victory.

A federal appellate court has ruled today that checkpoints run by D.C. police in neighborhoods beset by crime violate the constitutional rights of residents.

In a strongly worded opinion, the U.S. Court of Appeals for the D.C. Circuit condemned the crime-fighting tactic, which was used by police last summer in the city's Trinidad area. The checkpoints followed a spate of shootings, including a triple homicide.

"It cannot be gainsaid that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access," Chief Judge David Bryan Sentelle wrote for a three-judge panel. "It is apparent that appellants' constitutional rights are violated."

Law - "For now, progress is constrained by the limited capacities of mortgage servicing companies"

You will find that quote in this June 29thILB entry headed "Paper Avalanche Buries Plan to Stem Foreclosures."

Today Paul Kiel of ProPublica has an article headed "Obama Admin to Mortgage Servicers: Do More (Please)." A quote:

The administration has been increasingly outspoken about its own frustration with servicers , and on Thursday, according to the Washington Post and The Wall Street Journal, Treasury Secretary Timothy Geithner and HUD Secretary Shaun Donovan took that frustration one step further with a letter to the servicers participating in the program.It includes a link to a letter to the servicers participating in the program.

Particularly if you are doing foreclosure work, check the article for links to the letter and other materials.

[More] A second Pro Publica entry reports: "Among those not participating are three of the 10 largest servicers in the country and the second-biggest servicer of subprime loans."

Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)

Following dismissal of his death penalty, Appellant-Defendant Chijoike Bomani Ben-Yisrayl, f/k/a Greagree Davis, appeals his aggregate sentence of 150 years in the Department of Correction. Upon appeal, Ben-Yisrayl claims that the trial court erred by adopting and imposing the alternative term-of-years sentence provided for in the original sentencing order rather than conducting a new sentencing hearing. In addition, Ben-Yisrayl challenges the appropriateness of his sentence and the trial judge‟s recusal from his case. We affirm in part, reverse in part, and remand for resentencing. * * *

We have concluded that Ben-Yisrayl is entitled to a new sentencing hearing for his murder conviction which comports with the dictates of Blakely, but that he has waived his challenge to Judge Hawkins‟s recusal from his case. Accordingly, we affirm in part, reverse in part, and remand to Court Three for a new sentencing hearing on the murder conviction only.

The Board of School Commissioners of the City of Indianapolis (“the IPS Board”) filed in Marion Superior Court a complaint for declaratory judgment against the Indiana State Board of Education, the Indiana Election Commission, Clarke Campbell, Michael Cohen, Elizabeth Gore, and Leroy Robinson. In the complaint, the IPS Board sought an interpretation of Indiana Code section 20-25-3-4 and its effect on the outcome of the May 2008 school board election. The trial court determined that the individuals who received the highest number of votes for the at-large seats should be seated by the IPS Board. Campbell appeals and argues that it violates Indiana law for three members of the IPS Board to reside in the same Board district. Concluding that the individuals who received the most votes for the at-large seats were properly seated by the IPS Board, we affirm. * * *

Under these statutes, there is no dispute that Gore and Cohen were qualified to run for the “incumbent” and “open” at-large seats respectively at the time each formally and legally established her or his candidacy. The issue presented in this appeal arose because Gore and Cohen received the most votes for the two at-large seats, but they also both reside in the same district as the IPS Board member who represents District . Thus, we are faced with a situation in which it is impossible to adhere to both subsections (b) and (e) of section 20-25-3-4. * * *

In this case, we are presented with a situation that the statute simply does not address. The General Assembly addressed normal vacancies on the IPS Board and how those vacancies would be filled in section 20-25-3-4(h), but provided no guidance for the rare, but potentially recurring circumstance in this case where a mid-term resignation by an at-large Board member caused both at-large seats to be vacant in the same election cycle. * * *

Furthermore, we cannot agree with Campbell’s assertion that geographic diversity should prevail over the will of the electorate. Each of the five school board districts is represented by a member on the IPS Board. Because two at-large members are also elected, the General Assembly has authorized an IPS Board that lacks uniform geographic diversity. Accordingly, we conclude that geographic diversity was not our legislature’s overriding concern. * * *

For all of these reasons, we conclude that the trial court reached the correct result when it declared that Gore and Cohen should be seated by the IPS Board because they received the “most votes” for their respective at-large seats. In view of the overriding goal “to uphold the will of the electorate” it bears repeating that Gore received 22,942 votes to Campbell’s 15,512 votes, and Cohen received 28,348 votes to Robinson’s 24,442 votes for the respective at-large seats. See Burke, 907 N.E.2d at 532 (noting our supreme court’s reluctance “to remove from office a person duly elected by the voters.”).

Finally, we urge the General Assembly to consider the circumstances presented in this appeal and to formulate a statutory remedy to similar circumstances should they recur in a future election. Affirmed.

BARNES, J., concurs.
BAILEY, J., dissents with opinion. [which begins, on p. 15 of 21] I dissent from my colleagues’ opinion that Michael Cohen is qualified to hold an at-large position on the IPS Board, and I disagree with their determination that Indiana Code Section 20-25-3-4 provides no guidance for the circumstances that occurred in this case.

This appeal involves issues of liens and priorities between Paula Phillips (“Phillips”), a judgment creditor and assignee of a first mortgage holder (“National City”), and The Money Store Investment Corporation, d/b/a First Union Small Business Capital (“Money Store”), the holder of a second mortgage, for the cost of repairs, insurance, and taxes with respect to the mortgaged property owned by Neal Summers, on a part of which Phillips has been operating a restaurant. This is the second appeal of the case and is brought by Money Store from a judgment of the trial court adding to the lien of Phillips as assignee of National City’s mortgages amounts spent to repair the restaurant, insure it, and pay taxes on the mortgaged property during the pendency of the first appeal. * * *

To sum up, we reverse the personal judgment against Money Store; we order an accounting for the profits of the restaurant to be applied to the amount due on Phillips’ first lien; we otherwise affirm the judgment of the trial court; and we remand to the trial court for further proceedings consistent with this opinion.

Updating this ILB entry from July 7th, Zach Lowe of The American Lawyer had a story yesterday headed "GM and Chrysler: The End of Bankruptcy as We Know It?" It began:

Almost every bankruptcy expert The Am Law Daily talks to agrees that the super-fast General Motors and Chrysler bankruptcies diverted from traditional bankruptcy law because of the government's huge role in each case and the danger that liquidation might have posed to the broader economy.

What they don't agree on is whether the cases set a meaningful precedent for future judges. "What happened in GM and Chrysler is so outrageous and so illegal that until March of this year, nobody even conceptualized it," says Lynn LoPucki, a bankruptcy expert at UCLA Law School. "Wouldn't almost every company like to get out [of bankruptcy] in 30 or 60 days? Is there any reason they cannot all propose to do what GM and Chrysler have now done?"

Ind. Courts - "Teen to be tried in bomb threats"

Some quotes from this story today by Anne Blythe of the Raleigh NC News & Observer:

Federal prosecutors say a teenager from Oxford is a celebrity in an online prankster world in which conspirators, for nominal fees, make bomb threats to high schools, universities, federal offices and other places and then broadcast the results live to a select audience.

In indictments issued this week by a federal grand jury in Indiana, prosecutors accuse Ashton Lundeby, 16, of making or helping make bomb threats in at least a dozen states from his home computer since last year. In some cases, prosecutors say, Lundeby and unnamed co-conspirators would collect fees to lodge bomb threats at high schools and middle schools with the goal of closing school for the day.

Federal prosecutors call it "Swatting," the act of making a false emergency report that frequently prompts responses from special weapons and tactics, or SWAT, teams. They say Lundeby and the co-conspirators used pseudonyms and elaborate computer gaming techniques to disguise their voices and identities, then transmit threats and watch live through video surveillance and webcams as law enforcement teams responded.

Lundeby, a homeschooled boy arrested March 5 in his Oxford home and taken to Indiana, is being tried as an adult in federal court, though under federal law he is considered a juvenile. He is scheduled to go before a federal magistrate in Indiana today. * * *

According to the indictments, Lundeby is accused of making a bomb threat to Purdue University on Feb. 15 and to Indiana University-Purdue University at Fort Wayne on Jan. 31. He also is accused of conspiring to make bomb threats and conveying false information over the Internet and telephone lines from mid-2008 to March 6.

The complaint followed an objection to the burial plans that was filed by the boy's biological father, Peter J. Merritt, of Clayton, N.Y.

Josh Merritt died June 24 and his funeral and burial was originally planned for July 1 in the Scotland Cemetery. A burial plot has been selected right next to Josh's best friend, Nicholas Decker, who also died from injuries suffered in the same April 18 fire. Nicholas passed away on May 29.

Peter Merritt wanted to have his son's body cremated and then his ashes be divided in half -- with a potion going to his mother and the other portion to him so he could take them back to New York for distribution in a river near his home.

During the hearing on Tuesday afternoon, Judge Allen stressed that he was going to have to do some soul-searching in looking at this obviously emotional case.

Judge Allen noted in his ruling that there was testimony during a hearing on Tuesday that was "speculation by others to what Josh may have wanted in terms of burial preference."

"There is no evidence of Josh ever having made a statement regarding what his preference would be," Allen wrote.

In his four-page written judgment order, Judge Allen pointed out "There is no definitive right or wrong answer whether to bury or cremate human remains, the merit of each method is subject to any given person's feelings and/or convictions. Further there is no presumption or favor in law for one method over another. The dispositive question presented in this case is not whether to order burial or cremation, but the appropriate dispositive question is which parent has authority to make the final decision."

In his findings of fact, the judge stated that the mother and father lived together with Josh until sometime in 2003 or early 2004. The father maintained "somewhat regular" contact with Josh until he moved to New York in 2004. He moved back to Greene County, but relocated in 2006 to New York, where he still resides.

The father claimed he had lost regular contact with the boy's mother, but the court said that claim is disputed because Lisa Burris had a number of relatives -- including her parents, siblings -- living in Greene County who have been continuously accessible to the father.

The judge also pointed out that Lisa Burris was granted sole legal custody of the young boy in 2004. The father was awarded "reasonable and seasonable parenting time."

Indiana law outlines that a decedent's surviving parents have the authority to designate the manner of final disposition and interment of a decedent's remains and either parent has such authority unless a licensed funeral director or licensed funeral home or cemetery association receives a written objection from the other parent.

Allen referred to a 2004 Indiana Court of Appeals case in the Matter of the Supervised Estate of K.A. Deceased that acknowledged, "Indiana had no case law that addresses the issue of whether a custodial parent has the right to make decisions regarding the disposition of a minor child's remains."

Judge Allen also wrote: "In determining the outcome of a case, the Court must look beyond the emotional and sympathetic facts of a particular case and make a decision based upon sound reasoning and good policy. When presented with the question of which parent has the final authority to decide how to dispose of a minor child's remains, until such time that the legislature enacts statutes or the higher Court establishes case law as find precedent, the trial Court's must evaluate the circumstances of each case on a case by case basis to determine an equitable and just outcome."

Judge Allen concluded his decision by writing, "Based upon the findings set forth herein the Court concludes that the balance of the equities is in favor of the mother and the court hereby orders the remains of Josh to be disposed of as directed by his mother, Lisa M. Burris."

Ind. Gov't. - Indiana needs more female legislators

Indiana’s perennial lackluster showing among the 50 states extends to the percentage of women serving in the General Assembly, where a new survey places it 31st. That’s a considerable improvement over last year’s rank of 36. But a legislative body where only 22 percent of the members are female still is nothing to crow about. * * *

Only 5 percent of the northeast Indiana delegation is female. That’s one out of 19 lawmakers, an embarrassingly low figure. Before next spring’s primaries, both political parties should study their ranks and encourage strong female candidates to step up and run.

Rep. Phyllis Pond, R-New Haven, holds the distinction as the region’s only female lawmaker, one she’s held since Rep. Gloria Goeglein died in 2001. Numerous vacancies have arisen since that time, and four general elections have passed with no female candidates. Pond herself failed in a caucus bid for a Senate seat in 2004. * * *

Pond said she believes women bring a different approach to the Statehouse – less interested in climbing the leadership ladder and more interested in issues.

Which issues they champion is also distinct. The General Assembly has an overabundance of economic development champions and too few watchdogs for health and human services. Not surprisingly, the legislative push for oversight of the ill-conceived welfare eligibility outsourcing deal is almost entirely female-driven, a bipartisan effort by Sen. Vaneta Becker and Reps. Suzanne Crouch, Peggy Welch and Gail Riecken.

Goeglein was a passionate voice for Hoosiers with disabilities, including mental illness, while Pond has tirelessly sought ethics reforms.

“A lot of men are using (their legislative seats) as a stepping stone,” she said. “They go into leadership or they go to work as a lobbyist and make tons of money. I think (women) make decisions based more on family reasons than on political reasons.”

Ind. Decisions - "Sex offender ID law misapplied, higher court says"

David Michael Harris v. State, a 9-page, NFP opinion issued yesterday by the COA, is the subject of a story today by Sophia Voravang in the Lafayette Journal Courier. Voravong also wrote a story Wednesday on the Supreme Court's July 1st Pollard decision, quoted here in the ILB. From today's story:

Enhancements to Indiana's Sex and Violent Offender Registry that took effect on July 1, 2006, are continuing to cause snarls for law enforcement.

The Indiana Court of Appeals on Thursday reversed two convictions against a Lafayette man who assumed a dead man's identity -- allegedly to avoid being listed on the state's sex offender registry.

David M. Harris, 55, was found guilty of felony counts of forgery, application fraud, identity deception and failure to register as a sex offender after a bench trial in July 2008 in Tippecanoe Circuit Court. He also was found guilty of misdemeanor failure to possess a valid Indiana driver's license or identification card, a requirement that took effect three years ago.

Indiana's higher court, however, dismissed the application fraud conviction on grounds that the prosecutor's office could not prove that Harris applied in Tippecanoe County for a driver's license under the name Richard Blair.

Thursday's unanimous ruling also found that Harris does not have to carry government-issued identification because his two convictions for child molesting took place before July 1, 2006.

Sheriff's Detective Greg Haltom, who maintains Tippecanoe County's sex offender registry, said the justices' finding is contrary to how he'd been enforcing the ID card statute.

"The way I interpreted the law was that, if you're a registered sex offender, you need an Indiana identification card," Haltom said. "There is a lot of litigation out there right now regarding all those changes."

Harris is listed on the state's registry as a sexual predator, meaning he is required to provide his address and other contact information to law enforcement for life. * * *

Sheriff Tracy Brown said it's not uncommon to hear of different interpretations of the state's sex offender statutes. During an Indiana Sheriff's Association meeting Thursday, he said one person brought up that it could greatly vary in all 92 counties.

"The General Assembly had the right intent with the legislation, which is to protect children," Brown said. "But clearly there is enough confusion that law enforcement and legislators need to work at a committee level to sit down, review and tighten these laws."

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

Cynthia Jones appeals the decision of the full Worker's Compensation Board (the “Board”) affirming the decision of a hearing member, who concluded Stephen Jones, Cynthia's husband and an employee of Pillow Express Delivery, Inc. (“Pillow Express”), was not eligible for worker's compensation benefits. For our review, Cynthia raises two issues, one of which we find dispositive: whether an employee's use of prescription medication in accordance with a physician's instructions can create an intoxication defense to worker's compensation coverage under Indiana Code section 22-3-2-8. Concluding the definition of “intoxication” as used in Indiana Code section 22-3-2-8 includes intoxication by a prescription medication, we affirm. * * *

Thus, for the purposes of operating a motor vehicle, it is not a crime to simply operate a motor vehicle with a prescribed controlled substance in one's system; however, it becomes a crime when the driver becomes intoxicated by the prescribed controlled substance to the extent that it impairs his thought and actions and he loses normal control of his faculties.

Similarly here, the mere presence of a prescribed controlled substance, standing alone, is not sufficient to automatically disqualify a claimant from worker's compensation benefits. However, when the prescribed controlled substance causes an intoxicating effect, which contributes directly to the cause of the accident, the claimant is ineligible to receive compensation under the Act. Setting aside completely the issue of Stephen's marijuana use, it is undisputed that his Fentanyl use caused him to be intoxicated and that this intoxication led directly to the accident and his death. Therefore, Stephen is not entitled to worker's compensation benefits.

In Indiana, restrictive covenants are disfavored and are strictly construed with all doubts resolved in favor of the free use of property and against restrictions. Johnson, 856 N.E.2d at 772-73. We therefore conclude that, because the language in the covenants is ambiguous, Colucci.s short-term rental of its cabins does not run afoul of the covenants.

Landowners also contend that the maintenance of a real estate office to support the cabin rental activities on one of Colluci.s properties violated paragraph 1 of the covenants which provides that the parcels “shall be used only for residential purposes” and paragraph 4 which provides that “[n]o commercial business shall be carried on upon any parcel.” * * * From our review of the designated materials, we conclude that there is a material question of fact whether the maintenance of the real estate office violates paragraphs 1 and 4 of the covenants. Accordingly, we reverse that part of the trial court.s entry which grants summary judgment on the entirety of Count I of the Landowner.s Second Amended Complaint as to the issue of the real estate office and remand for further proceedings and findings regarding this issue. * * *

Further, there was no covenant language that allowed only one single-family structure per lot and that prohibited Earl from building more than one structure on each lot. If the prohibition from building more than one structure on each lot was desired, it would have been simple to add language prohibiting such conduct. Therefore, in the absence of language specifically prohibiting the building of multiple structures on one lot, we conclude that Earl.s construction of more than one structure on each of his lots did not constitute subdividing the lots and did not violate the covenants. Only if and when he attempts to further divide the lots by selling or transferring them to separate individuals, will Earl run afoul of the covenants. The trial court erred when it granted summary judgment in favor of the Landowners on this issue. * * *

[W]e conclude that the Landowners have not yet been successful in any of their claims against Colucci and are therefore not yet entitled to attorney fees. We reverse any part of the trial court.s order that is contrary to this holding.

Paternity of M.P.M.W.; A.W. v. Z.B. - "When a suspended sentence for civil contempt is conditioned upon compliance with a trial courts orders, this court has previously held that the suspended sentence is not punitive in nature because it is intended to coerce the party to abide by the trial court's orders and affords an opportunity for the party to purge itself of the contempt. * * *

"We recognize that a suspended sentence conditioned on adhering to the trial court's orders has generally been held a proper remedial contempt sanction, but believe that the two-year suspended sentence here was punitive. The majority of cases where a suspended sentence has been found to be a proper sanction for a civil contempt violation have involved shorter periods of imprisonment. Short periods of imprisonment may be coercive and remedial in nature, but the two-year sentence1 in the present case, which falls within the sentencing range for a Class C felony, went beyond coercing action of a party and became punitive. Further, Mother's sentence did not offer an opportunity for her to purge herself of the contempt. Unlike a contempt sanction conditioned on the payment of money or the accomplishment of a single task, this contempt sentence here cannot be purged. We therefore conclude that Mother's sentence was punitive in nature and vacate her two-year suspended sentence and remand to the trial court for resentencing."

The Town of Bristol (“Town”) appeals from an adverse determination in an action for judicial review of the decision of the Town Board acting as the Safety Board to discharge a police officer, Stephen Cappelletti (“Cappelletti”). The Town presents many issues for our review of which we find the following issue dispositive: whether the trial court erred in its interpretation of Indiana Code section 36-5-2-9.4(a) to require that a decision of the Safety Board must be made by a majority vote of the four elected members of the Town Council.
We reverse and remand. * * *

Based upon a review of the statutory provisions above and the clear and unambiguous language of Indiana Code section 36-5-2-9.4, we conclude that it does not apply in this situation as the Safety Board is not a legislative body, and its members, although frequently the same members as the legislative body, are appointed, not elected. The decision of a majority of the members of the Safety Board who were present and voting is sufficient to take disciplinary action against Cappelletti. Having concluded that the Safety Board’s decision to terminate Cappelletti’s employment was not void ab initio, we must remand this matter to the trial court for further proceedings on Cappelletti’s complaint.

Charles Robert Farmer v. State of Indiana - "Farmer has not established reversible error in the trial court's reference to two of the State's witnesses as experts in the presence of the jury or in permitting one of the witnesses to testify with regard to the tests performed by another analyst. Similarly, Farmer has not established reversible error in the trial court's exclusion of the self-serving statements Farmer made during his police interrogation. Lastly, Farmer's convictions for burglary and robbery do not constitute double jeopardy under the actual evidence test.
Affirmed."

Updating this ILB entry from April 14th, featuring a vegan's request for a LVTOFU license plate, the AP's Brendan Riley reports that it took an appeal to the Nevada Supreme Court to authorize a HOE license plate. Some quotes:

[William] Junge, whose case was pursued by the American Civil Liberties Union of Nevada, said he got the "HOE" plate in 1999 for his Chevy Tahoe, after being told "TAHOE" wasn't available.

"It's nonsense," Junge said of the state agency's efforts to pull his plates. The 62-year-old said he was referring to his vehicle's model and not to prostitutes with his plates, adding: "That was their interpretation. Shame on them." * * *

Rebecca Gasca of the ACLU of Nevada said the attempt by a DMV supervisor to cancel Junge's license plate violated constitutional First Amendment protections. Junge dropped out of the litigation after the DMV appealed to the Supreme Court, but the ACLU continued the fight.

"While the Urban Dictionary might be an entertaining Web site about the English language, the court acknowledged it's not a reliable source for DMV decision-making about whether a license plate is vulgar," Gasca said.

In written briefs submitted to the state Supreme Court, an attorney for the DMV argued there was no First Amendment violation and the state has a reasonable basis for regulating vanity plates on vehicles. It also said the term "hoe" was derogatory toward women.

Ind. Decisions - One Indiana case today from the 7th Circuit

In U.S. v. Dontrell Orlando Moore (ND Ind., Judge Springmann), a 15-page opinion, Judge Tinder, serving on a panel with Judges Posner and Wood, concludes an entertaining opinion involving a bank robbery in Fort Wayne where the bank robbers were tracked using GPS to a home not their own that they apparently commandeered, with:

Because the jury could rationally connect the dots from
Moore’s presence in the house to the description of
Robber #2, and because Moore’s work in the bank vault
aided and abetted Warren’s use of the firearm, there was
sufficient evidence to convict the defendant on both
counts. His conviction is AFFIRMED.

Leigh Jones reports in today's National Law Journal in a story that begins:

The American Civil Liberties Union of Indiana has launched a class action against that state's board of law examiners, asserting that inquiries into the mental health of those seeking a law license violate federal disabilities law.

The ACLU filed the lawsuit on July 7 on behalf of a woman licensed in Illinois who is seeking admission to the Indiana State Bar Association. Identified as "Jane Doe" in the action, the plaintiff seeks an injunction prohibiting the Indiana State Board of Law Examiners from asking certain questions about mental fitness. She also seeks a declaratory judgment that the questions on the application and the board's follow-up procedures violate the Americans with Disabilities Act (ADA).

The case mirrors actions in other states that have challenged certain questions regarding mental health on professional license applications. Similar challenges have resulted in the removal or modification of such questions in Maine, New Jersey and Rhode Island.

The Indiana application asks, among other questions, whether an applicant has been treated or diagnosed "for any mental, emotional or nervous disorders" at any time from age 16 to the present. It requires applicants who answer affirmatively to provide detailed information about the type of problem and in some cases to submit to evaluation by the Indiana Supreme Court's Judges and Lawyers Assistance Program.

"The whole inquiry is misguided," said Kenneth J. Falk, an attorney with the ACLU of Indiana who represents the plaintiff. The size of the class potentially could include about 10% of the 700 people each year who seek a law license in Indiana, based on the proportion of people with mental or emotional problems among the general population, Falk said.

The Indiana state Attorney General's Office, which was served with the complaint, declined to comment.

Ind. Law - Enthusiasm builds over use of golf carts in smaller communities

"Big crowd discusses golf carts" is the headline to this July 8th story by Bob Shraluka in the Decatur Daily Democrat. Some quotes:

An overflow crowd packed City Hall's council chambers for Tuesday night's meeting of Decatur City Council, most of the people on hand interested in getting a local ordinance that will allow golf carts to be legally driven on city streets.

The last session of the Indiana Legislature passed a state law — which became effective July 1 — banning golf carts from all roadways in Indiana. However, the law allows cities to adopt an ordinance approving the use of golf carts and also regulating them.

In Adams County, Geneva adopted such an ordinance some time ago, before the new state law came into being, and Monroe did so on July 2.

The one requirement in the state law that cities may not supersede says that all operators of golf carts must have a driver's license. And that was what brought out some of of the people attending last night's meeting: people with disabilities that do not allow them to obtain a driver's license.

Another firm aspect of the law concerns the fact that county governments do not have the opportunity to make the use of golf carts legal. The vehicles are illegal on county roads and state highways and will remain that way unless the state statue is changed. Now they are refining their ordinance, according to this July 7th story by Mark Stalcup in the Greene County daily World, headed "Golf carts now have curfew in Bloomfield

A number of people spoke out last night and, in the end, Mayor John Schultz vowed that the administration and council will delve further into the issue, seek answers to some questions, and eventually produce an ordinance.

"But we can't rush into this, we need to research this," and allow other people the opportunity to express their opinions, the mayor said. "But we do want to do this as quickly as possible." In closing, he added, "We will do the best we can, but we probably won't be able to satisfy everyone."

Assistant Police Chief Greg Cook began the lengthy discussion by talking about the new state law. In the past, he pointed out, the city has allowed the use of golf carts under the definition of a slow-moving vehicle.

One of the major hangups is the provision in the law requiring a driver's license. It was continually stressed by the mayor and council members that there is nothing the city can do to supersede that provision.

Bob Brown of Decatur said, "A lot of people drive golf carts because they can't get a license because of disabilities." Later, Brown, who have devices replacing the hands and feet he lost in an accident years ago, said he opposes requiring seat belts "because with these hooks" he cannot hook and unhook them.

Jack Tussing of Decatur said his wife, Ruth, "is handicapped and will never be able to get a license. She uses a golf cart and follows all the rules of the road."

Another Decatur resident, Jim Coyne, who said he cannot walk, spoke against seat belts on golf carts. "If I got hit (by another vehicle), I'd rather not have it on. I could at least fall out," he said.

Bryce Hoffman of rural Decatur, who sells golf carts and accessories for them, said he considers seat belts "a safety hazard unless you have a roll bar." If a golf cart would roll over, the person would be pinned in, he pointed out. Art Ehinger of rural Decatur agreed.

Larry Isch of Decatur said a number of Woodcrest people use golf carts to travel the grounds there. Greg Cook said those golf carts wouldn't fall under the law because they are being used on private property. * * *

Several people said if golf carts are legalized, the ordinance should have an age limit, and Kay Jauregui of Decatur said she thought the ordinance Monroe adopted "is a very good guideline" for Decatur.

Ralph Smith of Monmouth said he drives his golf cart to Decatur and expressed his unhappiness with the General Assembly's passage of the new law which now prohibits that.

State Rep. Matt Lehman of Berne and State Senator Travis Holdman of Markle represent Adams County in the legislature and should be contacted by those who want to change the law, the mayor said at one point.

Peggy Vlerebome reported in the Madison Courier July 8th, under the headline "Committee to draft ordinance allowing golf carts on streets":

A City Council committee will work with the city attorney and the police chief to write a proposed ordinance allowing golf carts to be driven on city streets.

Council President Damon Welch appointed council members Darrell Henderson, Rick Berry and Jim Lee to the committee after a council discussion Tuesday night where the consensus appeared to be that Madison should have such an ordinance.

An amendment to a state law went into effect July 1 that says cities can pass an ordinance allowing golf carts on their streets, but otherwise the practice is illegal. If the City Council does not pass an ordinance, city police will be obligated to write tickets, Police Chief John Wallace said.

"I believe the state has put the ball directly in the cities' courts," Wallace said.

Lee brought up the idea of the city's specifically allowing golf carts on its streets.

State law requires drivers of golf carts on streets to be adults who have a driver's license and proof of insurance, and the carts must be marked with a slow-moving-vehicle sign or lights.

An ordinance should have some restrictions, such as prohibiting golf carts from being driven up and down the hills and on some busy streets such as Clifty Drive, council members said. Wallace said golf carts would have to be driven in the same direction as the traffic in the lane they were in.

Until an ordinance is in place, drivers of golf carts on streets are in violation of the state law, as they have been for years. Wallace agreed with Lee that police have ignored enforcing the law for a long time, but won't be able to if an ordinance is not passed. Last fall, the Indiana State Police notified cities that its officers would ticket golf cart drivers. The new state law followed.

"Either we take one stand (by passing an ordinance) or I feel law enforcement is going to have to," Wallace said.

Bloomflied was ready for the new law on May 7th, per this ILB entry. Now they are refining their ordinance, according to this July 7th story by Mark Stalcup in the Greene County Daily World, headed "Golf carts now have curfew in Bloomfield." Some quotes:

Golf carts are now barred from Bloomfield's streets between 9 p.m. and 7 a.m.

Carts must also stay off state highways inside the town limits unless they're crossing.

The changes, passed Tuesday by the Bloomfield Town Council, came in the wake of a new July 1 law passed by the Indiana General Assembly which allows cities and towns greater say in registering the carts.

As gas prices have risen, the carts have become an increasingly popular mode of transportation, particularly across short distances inside cities, leading to a need for increased regulation.

In many ways, the town's new ordinance parallels state law: The cart's driver must have a valid license and proof it is insured for use on the roadways.

At least one of two options for safety devices are also required. Cart drivers must utilize a triangular slow moving vehicle emblem like the ones used on farm equipment.

A flashing light which glows amber in front and either amber or red in back, and which can be seen for at least 500 feet, may also be utilized, per the ordinance.

The measure expands slightly on state law. Bloomfield Town Marshall Kenny Tharp successfully sought an addition to the ordinance barring the carts from travel on highways.

"You've got to look at it this way: At 20 mph, a golf cart is not going to be a match for a car going 45 or 50 mph," he said.

Carts must cross the highways at a direct, 90-degree angle under the new ordinance.

Not law but interesting - Indy Star posting abbreviated stories

Over the past few days I've noticed a new trend. I'm not sure yet if it is unique to the Star, or extends to all Gannet papers.

The entire Star story you read at the breakfast table may not be posted online. Instead, what appears in the browser window is an abbreviated version.

In the BMV story I just write about in the last entry, for instance, it appears that all of what would have been an online "page 2", if the Star were following the new "2-page system" many papers have adopted recently (intended, I expected, to lead to higher click counts), is missing.

There is much more text in the printed, breakfast table story. And this is not counting the side-bars.

Currently, I've found that if I use the "print" link, that text includes the missing parts of the story.

Is this a glitch or a "feature" intended to drive readers back to the newsprint version? I'd say the former, since the latter would likely be accompanied by some promotion.

So far, 20 states have implemented similar standards as Indiana, while 11 states from Alaska to Maine have enacted laws effectively rejecting the federal standards.

The act mandates how states verify their residents' identities and distribute ID cards.

Some have likened the measure to a national ID card, which has fed into critics' complaints.

"It doesn't really help the country with much of anything," Jim Harper, director of information policy studies at the conservative Washington-based Cato Institute, said of a measure that requires native-born citizens to carry an ID card.

Ind. Gov't. - More on: IU Law tutition slated to go UP!

Updating this entry the ILB posted yesterday morning, the Indianapolis Star today has a front-page story headed "IU's Maurer School of law may raise tuition by 24.5%." Amanda Hamon reports:

The [Indiana University Maurer School of Law] has proposed a 24.5 percent increase in its in-state tuition and fees for 2009-10, a jump that Dean Lauren Robel attributed to its recession-impaired endowment, static state funding and an increase in fixed expenses.

"What you're seeing here," Robel said, "is the long-term impact of the decline of the state appropriation as a percentage of our budget."

But there's a silver lining: Although full-time, in-state tuition would increase from $19,988 to $24,000 a year, the IU law school would remain among the cheapest top-ranked schools in the country. It would still be among bargains in the Big Ten, too, cheaper than most schools, although Iowa and Ohio State charge less tuition.

IU law students were a bit philosophical about the proposed increase, suggesting it might be the price for an increase in quality. Maurer placed 23rd in rankings released in April by U.S. News and World Report; and among the top 25 schools, Maurer was the cheapest.

And, even with the tuition increase, Maurer is not likely to catapult far up in the price rankings. The top nine schools' tuition exceeded $40,000.

The story includes this graphic:

How they rank: U.S. News and World Report surveyed 184 accredited programs to develop its 2009 law school rankings on overall quality:

Wednesday, July 08, 2009

Updating this ILB entry from July 1st, quoted from a Gary Post-Tribune story that began:

Newton County Prosecutor J. Edward Barce, who is serving as special prosecutor in a case involving a Gary lawyer charged with trafficking with an inmate, let his law license go into inactive status for more than three years.

Until four months ago, Barce's license had been on inactive status since Aug. 5, 2005, according to Donald Lundberg, executive secretary of the Indiana Supreme Court Disciplinary Commission. Barce reactivated his license on Feb. 23, Lundberg said.

KENTLAND — Newton County Prosecuting Attorney J. Edward Barce has had a Complaint for Disciplinary Action filed against him by the Indiana Supreme Court Disciplinary Commission on 13 “factual allegations,” according to the commission’s Executive Secretary Donald Lundberg. Lundberg stated the complaint was filed in April and a response was received from Barce’s attorney in May.

The complaint stated in the Supreme Court’s complaint are Barce has served as Prosecuting Attorney for the 79th Judicial Circuit since 1999, and on Aug. 5, 2005, he placed his Indiana law license in inactive status by signing an affidavit. The affidavit filed said, “I wish to place or retain my Indiana law license in inactive status. I am currently in active or inactive good standing. I neither hold judicial office, nor am I engaged in the practice of law in Indiana. I understand by claiming this status, I am required to pay a reduced annual registration fee of $45.”

The complaint also states Barce signed similar affidavits when he paid his annual fees in 2006, 2007 and 2008. During the time the law license was inactive, Barce’s inactive status meant he may not use his Indiana law license to practice law, yet during that time, the complaint states he served as the Prosecuting Attorney and his office filed more than 1,000 criminal felony and misdemeanor cases in the Newton Circuit and Superior Courts and disposed of more than 1,000 cases that had been pending in the courts.

In the response, Barce admits to all 13 of the allegations, but denies violating Indiana Professional Conduct rules. The Disciplinary Commission complaint states Barce violated a conduct rule, “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so,” by practicing law in Indiana after filing his inactivity affidavit in August, 2005, until reactivating his license in February of this year and violated the rule: “It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice;” by serving as the Prosecuting Attorney and as special prosecutor when he did not have an active Indiana law license.

The fact that Barce’s law license was inactive was brought to light on Feb. 19, in a Lake County courtroom where he was serving as a special prosecutor. His license status was pointed out by Gary defense lawyer Carl Jones during the trial of Jerome Taylor, who was accused of trafficking with an inmate. Four days later, on Feb. 23, Barce brought his law license back to active status by paying the registration fee.

Jones asked that the case be dismissed. Lake Superior Court Judge Sheila Moss continued the trial but dismissed the jury pool. In June, she found that Jones had not been harmed or prejudiced by Barce’s law license status and scheduled a jury trial for October.

Barce said he would not talk about the complaint. Superior Court Judge Dan Molter said he was unaware of the license issue with Barce before reading about the allegations in a Lake County newspaper. He did not know how this would affect the cases Barce had prosecuted during the time his license was inactive.
Lundberg said affected cases would probably be dealt with on a case by case basis dependent on the defendants who question their cases.

Here is an earlier ILB entry from July 12, 2006, headed "Benton County prosecutor receives reprimand for conflict."

[Correction 7/17/09] The entry continued with the following information, but the ILB has been informed these references are to a different Mr. Barce. Sorry for the confusion.

Another ILB entry, from Jan. 14, 2008, quotes a Lafayette Journal & Courier story identifying a "Jud Barce" as "attorney for the Benton County Board of Zoning Appeals" in a story on CAFO issues.

The Roll of Attorneys lists a "Judson Gregory Barce" in Fowler, Indiana, as "active in good standing."

Here are earlier ILB entries re Torrey Bauer. Recall that there are two plaintiffs in tthe case:

On April 18, 2008, IRL along with Torrey Bauer, an attorney and (at that time) a candidate for judge of the Kosciusko Superior Court, and Judge David Certo of the Marion Superior Court, instituted this lawsuit against members of the ICJQ and the IDC in their official capacities.

Courts - Interview with Ruth Bader Ginsburg

Emily Bazelon of Slate has an outstanding interview with Justice Ruth Bader Ginsburg in the online NY Times. Not to be missed, it will appear in the Sunday NY Times Magazine. (I hate the story's headline.)

A federal appeals court yesterday upheld nearly all U.S. EPA designations of areas where airborne soot concentrations exceed national standards, rejecting challenges from state and local governments and industry groups.

The U.S. Circuit Court of Appeals for the District of Columbia yesterday rejected nearly every challenge from nine cities and counties, 10 power-industry groups and three states -- New York, West Virginia and Indiana -- upholding EPA's 2005 designations of nonattainment for fine particulate matter, or soot.

State and local governments and industry groups filed legal challenges against the agency's designations. They argued that EPA had illegally bypassed notice and comment for policies guiding the designations and challenged EPA's authority to define nonattainment areas as broad metropolitan regions. Petitioners also said the agency's designation rule was arbitrary and capricious and requested that the court vacate certain designations.

But the three-judge panel rejected the petitioner's procedural challenges and upheld the agency's designation of all but one of counties.

The court's decision means counties must continue to comply with the Clean Air Act's requirements for nonattainment areas, which includes restrictions on construction or modification of major emitting facilities, large factories and power plants, and other pollution-control requirements, Earthjustice attorney David Baron said.

[Updated 7/10/09] See this entry today by Jonathan Adler at The Volokh Conspriacy., remarking that Catawba County is one of the rare cases where a challenged "air pollution control decision made by the EPA under the Bush Administration has [not] been invalidated,"

Ind. Gov't. - "BMV announces new security measures"

Getting a new license or renewing an existing one will soon mean bringing in a birth certificate, passport or marriage certificate to the BMV, among other documents.

It's all part of the agency's effort to improve security and combat identity theft, reflecting in part recommendations made by the 9/11 Commission.
Advertisement

This new approach already is in place in 20 other states.

Documents will only need to be presented once, so that future renewals will be handled as they are today.

Anyone who gets a new license or state ID or renews one after Jan. 1 will have to prove his or her identity, Social Security number, citizenship or immigration status and state residency. Documents that can be used include birth certificates or passports, Social Security cards or W2 forms and bank statements or utility bills.

Licenses will then be mailed to motorists to allow the agency time to verify the applicant's identity.

Related: "Obama Administration Plans to Scale Back Real ID Law" from the June 14th ILB:

The new plan keeps elements of Real ID, such as requiring a digital photograph, signature and machine-readable features such as a bar code. States also will still need to verify applicants' identities and legal status by checking federal immigration, Social Security and State Department databases.

Anne Barnard of the NY Times had a lengthy story Monday on cellphone data and the courts. Some quotes:

Mikhail Mallayev, who was convicted in March of murdering an orthodontist whose wife wanted him killed during a bitter custody battle, stayed off his cellphone the morning of the shooting in Queens. But afterward, he chatted away, unaware that his phone was acting like a tracking device and would disprove his alibi — that he was not in New York the day of the killing.

Darryl Littlejohn, a nightclub bouncer, made call after call on his cellphone as he drove from his home in Queens to a desolate Brooklyn street to dump the body of Imette St. Guillen, the graduate student he was convicted this month of murdering.

The pivotal role that cellphone records played in these two prominent New York murder trials this year highlights the surge in law enforcement’s use of increasingly sophisticated cellular tracking techniques to keep tabs on suspects before they are arrested and build criminal cases against them by mapping their past movements.

But cellphone tracking is raising concerns about civil liberties in a debate that pits public safety against privacy rights. Existing laws do not provide clear or uniform guidelines: Federal wiretap laws, outpaced by technological advances, do not explicitly cover the use of cellphone data to pinpoint a person’s location, and local court rulings vary widely across the country. * * *

Investigators seeking warrants must provide a judge with probable cause that a crime has been committed. But investigators often obtain cell-tracking records under lower standards of judicial review — through subpoenas, which are granted routinely, or through an intermediate type of court order based on an argument that the information requested would be relevant to an investigation.

In what would be the highest-level court decision on the issue so far, a federal appeals court in Pennsylvania is expected to rule this summer on whether search warrants are required for the most basic cellphone tracking data — the electronic footprints that cellphone users leave behind in company records, often without realizing it. * * *

In the case being weighed in Pennsylvania, the Federal District Court in Pittsburgh ruled last year that a search warrant was required even for historical phone location records, which the government had requested to track a suspect in a drug case.

The decision upheld a magistrate judge’s ruling that people have a reasonable expectation of privacy regarding their physical location. Most Americans, the ruling said, do not know that their cellphones create a record of their movements and “would be appalled” to learn that the government can access it without showing probable cause. The Justice Department has appealed the case to the United States Court of Appeals for the Third Circuit.

The civil liberties union and the Electronic Frontier Foundation are supporting the lower court’s decision, and say laws are needed, as the foundation puts it, to “keep Big Brother out of your pocket.”

INDIANAPOLIS - With identity theft among the fastest growing crimes in the state, Indiana Attorney General Greg Zoeller announced a concerted effort to combat identity theft. Joined by Marion County Prosecutor Carl Brizzi, Zoeller alerted Hoosiers to several improved ways for consumers to protect their good name and credit rating.

“With the downturn in the economy, criminals have become relentless in their efforts to steal the identities of consumers and fraudulently open lines of credit,” Zoeller said. “Identity theft is devastating to victims and can take months or years to untangle. Today we launch a new effort to attack identity theft.”

“In the past, our response to identity theft has been limited because the law had not caught up to this new form of digital victimization. With these new tools at our disposal, our offices will better be able to protect the citizens of Marion County and the State of Indiana from the serious threat of identity theft,” Brizzi said.

Zoeller and Brizzi today discussed a new effort to assist identity-theft victims while educating other consumers on how to avoid becoming victims in the first place.

“One of the most important protections is the security freeze, where consumers can go to our web site, sign up and prevent anyone from fraudulently obtaining credit in their name. The security freeze is tied to all three major credit-reporting bureaus. And, if the consumer wants to apply for a new line of credit, they can go back to the web site, lift the freeze temporarily, and then seal the lid of protection again,” Zoeller said.

To train attorneys on the legal ramifications of dealing with identity theft, the Indiana Attorney General’s Office is holding a series of CLE (Continuing Legal Education) classes on ID theft. Registration for the first CLE session, July 15, already is full, but others will be offered soon and will be open to lawyers and non-lawyers alike. Professionals who work with the public - such as law enforcement officers, retail merchants, social services workers, assisted-living facilities managers and clergy - may find the course of benefit.

This CLE training offered by the Attorney General’s office will cast a wide net in training professionals who will be the first line of defense in preventing identity theft,” Zoeller said. “Our office has found that the Hispanic community often is hit especially hard by identity thieves.”

The effort comes as Indiana’s new identity-theft protection law, House Enrolled Act 1121, took effect last week. The new law boosts protections for consumers and creates new rights for victims, while giving local and state authorities more powerful tools to crack down on identity thieves. * * *

Video of today’s news conference will be posted on the Attorney General’s web site. Dates for upcoming CLE training courses on identity-theft prevention offered by the Attorney General’s office will be announced soon.

Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

Appellant-respondent Krstin Nicevski appeals from the decree of dissolution of his marriage to appellee-petitioner Greta Nicevski. Krstin argues that the trial court erred by including the value of a residence titled in his parents' name in the marital estate and directing him, among other things, to pay Greta $40,000, or half of the value of the residence. Finding that the trial court was without authority to include the residence in the marital estate because Krstin's parents were not joined as necessary nonparties pursuant to Indiana Trial Rule 7(B), we reverse and remand with instructions to revise the decree of dissolution consistently with this opinion. * * *

Here, as in Dall, the title to the residence was owned by nonparties—Krstin's parents. And Krstin's parents were not joined as necessary nonparties pursuant to Trial Rule 12(B)(7)—indeed, they did not even testify at trial. Though Greta argues that Krstin has waived any argument because he did not object to her failure to join his parents at trial or seek to join them himself, we agree with the Dall court that reliance on the waiver doctrine does not resolve this case. Without the titleholders' presence at trial, the trial court was without authority to adjudicate the issue of the ownership of that property. We fully acknowledge that the trial court assessed witness credibility and chose to credit Greta's testimony over Krstin's, and we do not second-guess that decision. Unfortunately, pursuant to Dall, the trial court simply did not have the power to include the residence in the marital estate. Therefore, we find that the trial court erred by including the residence in the marital estate and directing Krstin to make a payment of $40,000 to Greta.

NFP civil opinions today (4):

Stuart D. Simons v. Susan Schau (NFP) - "We hold that Schau has demonstrated by clear and convincing evidence that Simons knowingly or intentionally engaged in a course of conduct involving repeated harassment of Schau that would cause a reasonable person to feel frightened and that did, in fact, cause Schau to feel frightened. While Simons claims that he has a constitutionally-protected right to walk and drive up and down Schau’s street, we remind him that voyeurism, which is defined as peeping into an occupied dwelling of another person without that person’s consent, is a crime. See Ind. Code § 35-45-4-5(b). The trial court did not err when it issued the protective order against Simons. Affirmed."

Ind. Gov't. - More on "State puts IBM on notice over welfare deal"

In January 2007, before the IBM system was rolled out, the portion of food-stamp cases that were mishandled was 4.38 percent. By January 2009, that number had shot up to 18.2 percent.

More from the story:

Nearly two years into the privatization of Indiana's welfare system, state officials are considering scrapping it amid widespread concerns that include the mishandling of nearly one in five food-stamp cases.

State welfare officials acknowledge that in about three-quarters of those cases, eligible Hoosiers are being denied aid they should be receiving.

"It's possible we'd have to cancel the contract," said Anne Murphy, secretary of the Indiana Family and Social Services Administration, referring to a $1.16 billion deal with IBM. She said the company will have until September to make improvements. * * *

Despite critics' objections that welfare requires a personal touch, the gradual rollout began county by county in October 2007. After a chorus of complaints from social workers, aid recipients and lawmakers, the rollout was halted abruptly in March, with 33 counties to go, Marion County among them.

Murphy says the new [$1.16 billion] system is no worse than the previous state-run system but that the economic recession -- unemployment is 10.6 percent -- combined with last year's extensive flooding has swollen the welfare rolls and bogged down the system. In April, when FSSA last compiled its food-stamp numbers, 695,000 Hoosiers received stamps, compared with 584,000 in April 2007. * * *

Last month, IBM implemented changes that involved hiring more than 300 additional staffers, some retraining of existing staff and adding new computers and more scanners. Murphy said it's too early to appraise the new strategy.

Critics are skeptical. "I've had tons and tons of complaints," said Sen. Vaneta Becker, R-Evansville, one of two Republicans who pushed for legislative oversight of the FSSA before the agency went further with its privatization. "I've heard of two people who died after losing Medicaid."

Becker characterized the changes IBM is implementing as "fine, but they won't solve the problem."

Canceling the contract would set back efforts in some states to outsource and automate welfare systems and move away from cost-intensive, hands-on work by government caseworkers. The industry and some members of Congress have closely watched the Indiana experiment after a similar one in Texas ended with a canceled contract with Accenture in 2007.

Murphy’s comments are the first by a senior member of Gov. Mitch Daniels’ administration that IBM and its partners, most prominently Dallas-based Affiliated Computer Services Inc., could lose the contract.

IBM and its partners have taken over welfare intake in 59 of Indiana’s 92 counties and handle about one-third of the state’s 1.2 million-person caseload. Most area counties, including Allen, switched to the new system in May 2008.

Murphy said a 12-week review of their efforts resulted in more than 200 recommended changes to improve training, reduce turnover, add 350 more employees and introduce more technology to speed up approval of welfare applications and reduce error rates.

IBM spokesman Jim Larkin said the company “is working closely with the state to implement that plan in an aggressive manner.”

Clients, their advocates and lawmakers have harshly criticized the IBM team for lost documents, slow approvals and severed eligibility for Medicaid, food stamps and other benefits. Federal food stamp officials have also requested improvements.

In April, using FSSA data, The Journal Gazette documented problems with the agency’s food stamp program. During the final quarter of 2008, the FSSA failed to process almost a third of food stamp applications within its goal of two months, leaving thousands of Hoosiers waiting for help.

Nearly 78 percent of applications in Allen County were processed within two months from April to June 2008, but that rate fell to 66 percent during the last three months of the year, according to the state data.

In Noble County, during the last three months of 2008, almost half of food stamp applications took longer than 60 days to process.

The agency blamed its slow processing times on growing pains, an increased volume of applications and possible client errors.

Four members of the Indiana House briefed by Murphy said she told them the corrective plan was an intermediate step before the state resorted to canceling the deal.

“She did say that they would initiate breach of contract, and she said IBM was aware of this,” said Rep. Suzanne Crouch of Evansville, a Republican like Daniels.* * *

Daniels has said repeatedly that he inherited one of the worst welfare systems in the nation and has made the IBM deal one of the hallmark initiatives of his 4 1/2 -year-old administration. * * *

Daniels had signed the contract in December 2006, saying it would give Indiana taxpayers “a billion dollars of savings” and serve welfare recipients better. “No decision we’ve made is more clearly in the public interest,” he said at the time.

But critics wary of seeing problems similar to those in Texas already were condemning the contract. In Washington, Sen. Tom Harkin of Iowa and Rep. Henry Waxman of California, both Democrats, raised concerns in letters to then-U.S. Agriculture Secretary Mike Johanns, whose agency oversees the food stamp program.

Also criticized were Affiliated Computer Services’ ties to Murphy’s predecessor, Mitch Roob, a former executive at the Texas-based technology vendor. Under the Indiana contract, FSSA outsourced 1,500 of its employees in 2007 to ACS to operate call centers and perform other tasks.

Roob left FSSA in January to take over Indiana’s economic development efforts, and Murphy, his deputy secretary and chief of staff, rose to FSSA’s top job. After reviewing data on the welfare project, she decided to halt its rollout and go to the governor.

Ind. Gov't. - IU Law tutition slated to go UP!

A release from the IU News Room dated July 6 is headed "IU Trustees set July 16 public hearing on tuition rate increases." Some quotes:

INDIANAPOLIS -- The Indiana University Board of Trustees will conduct a public hearing on Thursday, July 16, to hear student and public comment on proposed tuition and fees to be set for all IU campuses for the next two academic years.

More details on undergrad increases may be seen in the release. The release ends with this information:

Proposed increases for graduate and professional programs vary from campus to campus.

Future physicians training at the IU School of Medicine would pay 2.5 percent more in tuition and fees in 2009-10 and 4 percent more in 2010-11. At the Maurer School of Law, in-state tuition would go up 24.5 percent and 8.1 percent respectively in the next two years. At the IU School of Law-Indianapolis, in-state tuition would increase 8.1 percent and 9.6 percent. In-state students at the IU School of Nursing would see an increase of 1.3 percent in 2009-10 and 2.2 percent in 2010-11.

Ind. Decisions - "Ex-sex offender hopeful after residency ruling"

The Supreme Court decision July 1 in the case of State of Indiana v. Anthony W. Pollard (ILB summary here) is the subject of a story today by Sophia Voravong of the Lafayette Journal Courier. Some quotes:

Two summers ago, nearly 30 Tippecanoe County sex offenders who had victimized children received hand-delivered letters stating that they had to move or else be criminally charged with a Class D felony.

The letters were in response to a statute, passed in 2006, prohibiting such sex offenders from living within 1,000 feet of a school, public park or youth program center.

That decision has cost Robert Rawles of Lafayette, a three-time convicted child molester, an estimated $11,000 in motel costs.

"I know the public believes, 'Once a child molester, always a child molester,' " he said. "But I'm not the same person today. ... This law has emotionally and financially drained me."

But under a recent ruling by the Indiana Supreme Court, Rawles and other offenders convicted before the law was enacted on July 1, 2006, could soon return home.

The 5-0 decision found that the residency restriction violated the Indiana Constitution by retroactively punishing Anthony W. Pollard, a Blackford County man who died in December.

Pollard had owned his home for about 10 years when he was convicted in 1997 of a sex offense against a child. In January 2007, he was charged with violating the new residency law.

A Blackford County judge dismissed the charge as unconstitutional, and it was upheld by the Indiana Court of Appeals. The state's Supreme Court agreed.

"... A sex offender is subject to constant eviction because there is no way for him or her to find a permanent home in that there are no guarantees a school or youth program center will not open within 1,000 feet of any given location."

Tuesday, July 07, 2009

Ind. Law - "Barnes & Thornburg Adds Five BigLaw Laterals in Chicago"

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

For publication opinions today (4):

Indiana Family and Social Services Administration v. Robert T. Pickett - "[W]e grant rehearing for the limited purpose of making clear that we intended to affirm the trial court’s order of reversal and remand. To avoid any further confusion, we instruct that the agency’s action should be consistent with our opinion, the trial court’s order, and the lawful requirements of the Medicaid program. We affirm our original opinion in all other respects."

But while this evidence supports the trial court's determination that Grandmother is J.V.‟s “de facto custodian,” the trial court was also required to consider whether awarding custody of J.V. to Grandmother is in J.V.'s best interests. In its order awarding custody of J.V. to Grandmother, the trial court failed to make this determination. Although there is evidence in the record suggesting that awarding custody of J.V. to Grandmother is in J.V.'s best interests, we remand this case to the trial court with instructions to enter the findings required to support its custody determination. Such findings are particularly important in this case given the significant burden a third party must overcome to rebut the presumption that the natural parent should have custody of his or her child. See B.H., 770 N.E.2d at 287 (“A generalized finding that a placement other than with the natural parent is in a child‟s best interests, however, will not be adequate to support such determination, and detailed and specific findings are required.”) Remanded for proceedings consistent with this opinion.

If the evidence in Goolsby was insufficient to prove penetration, then likewise, we are constrained to conclude here that evidence of trauma to L.L.'s anus, plus the presence of semen stains in her underwear, are insufficient to prove that Atteberry penetrated L.L.'s sex organ with his sex organ. We must therefore conclude that the evidence is insufficient to support Atteberry's conviction for rape.

The evidence at trial and on review clearly demonstrates that Atteberry sexually assaulted L.L. anally. But the crime of rape in Indiana does not include such conduct, which is instead defined by statute as criminal deviate conduct, a crime for which Atteberry was not charged. The State apparently realized that it had charged the wrong crime when it untimely and unsuccessfully attempted to amend the charging information on the day trial was to begin to allege that Atteberry committed criminal deviate conduct.

The State's failure to properly charge Atteberry is no mere technicality that we may overlook. Fundamental due process and common sense both require that the State must prove the elements of the crime it charged, not the elements of some other crime the defendant may have committed. * * * Because the State charged Atteberry with rape, but failed to present evidence sufficient to prove the essential element of penetration of the victim‟s sex organ by Atteberry‟s sex organ, we must and do reverse that portion of the judgment pertaining to Atteberry‟s Class A felony rape conviction and remand with instructions that the trial court vacate that conviction and the sentence imposed thereon.

Myron Owens v. State of Indiana - "The State presented sufficient evidence to establish that Owens delivered cocaine to the C.I. and that such transaction occurred within 1,000 feet of the Daycare Center. The trial court did not err in applying the habitual offender enhancement to Owens’s sentence for dealing in cocaine."

NFP civil opinions today (3):

Beaty Construction v. Board of Safety Review, et al (NFP) - "Here, Beaty's crane inspection records were sometimes signed by the person who did not perform the inspection. This is clearly contrary to the requirements of the applicable regulation. Beaty claims that although the inspection reports may not have been signed by someone other than the inspector on a daily or weekly basis, they were signed by the actual inspector at least monthly, which it claims is all that is required under 29 C.F.R. 1926.550(b)(2). However, Beaty admits that the inspection reports were at times signed by someone other than the actual inspector. Still, Beaty argues that it complied with the spirit of the law, if not the letter. We disagree. The applicable regulation requires that the inspection reports be signed by the inspector. Beaty admits that this was not always done in its inspection reports. Although Beaty claims that this irregularity was at most a de minimis violation, this is precisely why the safety report cited Beaty for a non-serious violation and issued no fine."

Josif Obetkovski v. Inland Steel Industries (NFP) - "Based upon the foregoing discussion and authorities, we conclude that the Board did not err in finding that Obetkovski failed to give Inland notice of the alleged work-relatedness of his injury and that this failure prejudiced Inland. In addition, there is ample evidence to support the Board’s conclusion that Obetkovski did not suffer a compensable injury in the course and scope of his employment with Inland."

In the instant case, it is undisputed that Mother is a fit parent, who has consistently allowed visitation between Grandparents and her children even in the face of hostile treatment. In fact, Mother concedes that grandparent visitation is in the best interests of her children. The issue, therefore, is how much visitation. Under the circumstances presented here, we believe Mother is best suited to make this decision for her children. * * *

The trial court concluded that Grandparents were entitled to “consistent and predictable” visitation with the children. We have previously observed, however, that “the Act only contemplates occasional, temporary visitation as found to be in the best interest of the child.” Swartz v. Swartz, 720 N.E.2d at 1222. This is exactly the type of visitation Mother was allowing prior to the filing of the instant petition, as well as after. The trial court’s decision to grant court-ordered visitation to Grandparents was clearly erroneous.

In their grief over losing their son, Grandparents’ urge to hold close to their grandchildren is understandable. Unfortunately, they have attempted to do so while pushing the children’s mother, a fit mother, away. Mother clearly desires for her children to have a close relationship with Grandparents, despite the wounds they have inflicted upon her. In time, these wounds will likely heal, and Grandparents are well advised not to create new ones. There is no doubt that Grandparents and Mother dearly love G.M. and B.M. In the best interests of the children, as well as Father’s memory, Mother and Grandparents need to put aside their recent differences and move forward. In doing so, Grandparents must accept that they are not entitled to visitation on their terms. As set forth above, Mother is best suited to schedule the children’s visits, ideally after consultation with Grandparents. Regardless, the facts and circumstances presented here do not warrant state intervention. Judgment reversed.

Ind. Gov't. - "State puts IBM on notice over welfare deal" [Updated]

A top Indiana official says the state's privately run welfare project has so many problems that Indiana could begin taking steps to cancel its $1.16 billion contract this fall.

Family and Social Services Administration Secretary Anne Murphy says she asked lead vendor IBM Corp. to prepare a “corrective action plan” as part of a process that could result in canceling the 10-year deal if

Murphy says the state wants IBM and its partners to succeed. IBM spokesman Jim Larkin says the company is working aggressively to make changes.

Lawmakers and clients say the project has led to lost documents, slow approvals and severed eligibility for Medicaid and food stamps.

[Updated]IBJ has the entire, still unattributed, AP story here. It concludes:

Daniels has said repeatedly that he inherited one of the worst welfare systems in the nation and has made the IBM deal one of the hallmark initiatives of his 4½-year-old administration. When Murphy, shortly after becoming FSSA's chief in January, told him how many problems the project had, he became personally involved.

"I took it to the governor and I showed him the data, and he called the executives at IBM and ACS and told them that they needed to make changes," Murphy said.

Daniels had signed the contract in December 2006, saying it would give Indiana taxpayers "a billion dollars of savings" and serve welfare recipients better. "No decision we've made is more clearly in the public interest," he said at the time.

However, critics wary of seeing similar problems to those in Texas already were condemning the contract. In Washington, Sen. Tom Harkin of Iowa and Rep. Henry Waxman of California, both Democrats, raised concerns in letters to then-U.S. Agriculture Secretary Mike Johanns, whose agency oversees the food stamp program.
Also criticized were ACS' ties to Murphy's predecessor, Mitch Roob, a former executive at the Texas-based technology vendor. Under the Indiana contract, FSSA outsourced 1,500 of its employees in 2007 to ACS to operate call centers and perform other tasks.

Roob left FSSA in January to take over Indiana's economic development efforts, and Murphy, his deputy secretary and chief of staff, rose to FSSA's top job. After reviewing data on the welfare project, she decided to halt its rollout and go to the governor.

"It was apparent that there were a lot of problems," she said. "I just told him I was surprised at the level of problems with the project and that it was going to take a lot of work to correct it."

Ind. Courts - "Franklin College sues Ohio-based university"

Franklin College filed a federal lawsuit Monday against Franklin University to stop the Ohio institution, which is opening a location in the Castleton area on the Northeastside, from using confusing images in its advertising.

"Since Franklin University began its advertising blitz in Central Indiana this spring, we have received calls, comments and e-mail messages from many people asking why we changed our name or whether we've opened a satellite office for online education in Indianapolis," Franklin College President James Moseley said in a statement.
Advertisement

"We have great concerns about the impact of the obvious confusion, especially with prospective students and employers of our alumni."

Of particular concern to the college is its trademark clock tower logo.

"Their ads include colors and a 'clock tower' design amazingly similar to our logo," Moseley said.

Responding to the suit, Franklin University said it will protect the right to use its own name and publicize its programs in a factual manner.

Franklin College, a liberal arts institution with about 1,000 undergraduate students, is in the Johnson County city of the same name, about 25 miles south of Indianapolis. The school is celebrating its 175th anniversary this year.

Franklin University, founded in Columbus, Ohio, in 1902, recently leased nearly 20,000 square feet of space at the Allison Pointe Office Park on the Northeastside of Indianapolis.

Here are the statements from Franklin College and Franklin University. Take a look. When doing so, take particular note of the logos of each institution, including the typeface.

[Note: I tried to download a copy of the complaint, to accompany this entry, twice. Each time Pacer charged me $0.98, but the PDF file I received caused my Firefox browser to bomb.]

Law - More on "Jackson’s Will Could Set Off Legal Battle Over Estate" [Updated]

Updating this ILB entry from July 1st, several stories of interest today.

"Despite a Will, Jackson Left a Tangled Estate" is the headline to this story by Tim Arango and Ben Sisario in the NY Times. A quote:

There is more at stake than the singer’s assets when he was alive. With explosive sales of music and worldwide hunger for all things Jackson, the estate will need to act quickly to establish a business that can police its property.

"Judge Denies Jackson's Mother: Pop Singer's Co-Executors Get Decision-Making Authority in Business Affairs" is the headline to this story by Ethan Smith in the Wall Street Journal. A quote:

Monday's hearing was part of what is usually a routine procedure after a person's death. But it took on greater significance in Mr. Jackson's case because of tensions between the singer's family and confidantes over how his financial interests will be managed.

Mr. Jackson left behind holdings worth hundreds of millions of dollars, as well as big debts. Figuring out how to handle both sides of the equation is a complex job that will determine how Mr. Jackson's heirs benefit from his multimillion-dollar empire.

Messrs. Branca and McClain were granted control over key aspects of Mr. Jackson's affairs until an Aug. 3 hearing. Judge Beckloff is expected that day to rule on whether the singer's will is valid and to name a permanent executor.

John Schreiber and other lawyers for Mrs. Jackson said they worried Mr. Branca could have conflicts of interest. Pressed by Judge Beckloff for examples of a potential conflict, another lawyer, Burt Levitch said: "The named executors are not the proper people to represent the estate."

Judge Beckloff said, "Somebody does need to be at the helm of this ship" to steer Mr. Jackson's ongoing businesses. He authorized Messrs. Branca and McClain to make short-term business decisions -- with his approval -- and ordered them to inform Mrs. Jackson's lawyers of their plans. * * *

Mr. Branca had served as Mr. Jackson's lawyer from 1980 until 2006. Paul Hoffman, a lawyer for Messrs. Branca and McClain, said he had a letter signed by Mr. Jackson eight days before his death, rehiring Mr. Branca.

[Updated 7/8/09]See also"Lawyers Abound at Probate Hearing on Michael Jackson's Estate," by Amanda Bronstad of The National Law Journal.

Ind. Law - "It's the Law: Leave wild animals alone"

Ken Kosky's NWI Times'"It's the Law"column from June 29th looked at the need to leave wild animals alone. Some quotes:

The Indiana Department of Natural Resources is reminding people it is illegal to possess or "rescue" wild animals unless you have the proper permit. Conservation Officer Gene Davis said state and federal laws make it illegal to take wild animals.

Davis said baby deer, raccoons and birds are among the animals most commonly approached by people.

"They will see a fawn laying by itself and assume the mother has been killed or run off," Davis said.

Davis said deer protect their fawns by leaving them alone. The baby deer have almost no scent, so they are not likely to be located by predators if they are hiding.

Davis advises people to not interfere with nature.

"It starts a myriad of problems," Davis said of having humans caring for wild animals. "It almost always turns out to be a bad situation for the animals."

Davis said it is difficult to raise a wild animal, and doing so does not allow the animal to learn to get its own food. Davis said it is best to let animals learn how to fend for themselves. About the only situation a person might want to get involved is if they see a deer has just been struck by a car and its fawn is wandering around the area.

Anyone who encounters a wild animal that is definitely injured or abandoned can contact the Department of Natural Resources through their local police department.

American courts regularly supply interpreters at public expense to criminal defendants who are indigent. This appeal presents quite a different proposition: what should the court supply when the defendant is solvent?

When appellant Jesus Arrieta came before the court for his initial hearing on drug charges, the court provided an interpreter at public expense because the defendant did not speak English. The defense subsequently requested a court-funded interpreter for all remaining proceedings. The court declined to pay for these services absent a showing of indigency. The Court of Appeals affirmed on interlocutory appeal.

We distinguish defense interpreters, who simultaneously translate English proceedings for non-English-speaking defendants, from proceedings interpreters, who translate non-English testimony for the whole court. We conclude that courts should regularly provide proceedings interpreters at public expense when they are needed, regardless of a defendant’s indigency even when the defendant speaks English, as they are part of the basic apparatus of a court’s operation. By contrast, we see little reason why the public should finance defense interpreters for defendants who possess financial means.

A new study of 35 states exposes the failure of many state courts to provide interpreters to people with limited proficiency in English (LEP) - often in violation of Title VI of the Civil Rights Act of the United States.

Language Access in State Courts, which selected states with the highest proportion of people with LEP, shows that when state courts fail to provide competent interpreters to people with LEP in civil cases, the costs are high. Families trying to hold on to their homes or trying to obtain hard-earned wages lose out and courts can't make accurate findings.

"The human toll is tragic," says Laura Abel, author of the report and Deputy Director of the Brennan Center's Access to Justice Program. "Children are forced to interpret for their parents in sensitive divorce and child custody cases. People leave court without knowing what happened, and can't comply with court orders. Judges don't know what witnesses are saying."

The release of Language Access in State Courts coincides with the introduction of the State Court Interpreter Grant Program Act by Senator Kohl (D-WI). The new legislation would authorize $15 million per year, for three years, to enable state courts to improve their interpreter programs.

The Department of Justice has also renewed its commitment to enforce interpreter requirements in the state courts. Just this past February, DOJ warned the Indiana Supreme Court that court systems receiving federal funds violate Title VI of the Civil Rights Act of the United States if they charge money for interpreters. [ILB - here is the DOJ warning.] The report provides guidelines for advocates, legislators and judges to adopt best practices and to bring their states into compliance with Title VI.

Under Title VI, state and county courts receiving federal funds must provide interpreters to individuals who need such help to understand court proceedings. Most court systems receive such funding and are covered by the law. * * *

Language Access in State Courts also identifies clear violations of the law. In DuPage County, Illinois, for example, the courts tell the public: "There are no statutory requirements nor any constitutional obligations that public funds be expended for appointment of language interpreters in civil cases." California Governor Schwarzenegger has vetoed bills providing funding for interpreters in civil cases.

From p. 4 of the Report:

As a rule, state courts have recognized their obligation to provide interpreters to people facing criminal charges, although the quality varies widely, and some states improperly charge at least some criminal defendants for interpreters.[7] Although most state courts also have a constitutional or statutory obligation to provide interpreters in civil proceedings, some states have been faster to comply than others. Some ensure that interpreters are made available, free of cost, to all parties and witnesses in all civil proceedings. Others provide interpreters in only some types of civil proceedings, charge for the interpreters they provide, or provide interpreters whose competence has never been assessed.
___________
[7] Those states include at least Alaska, Arkansas, Indiana, Florida, Louisiana, Nevada, Oklahoma, Tennessee and Utah. Alaska R. Governing Admin. of All Courts 6(b)(2) (criminal defendants who need an interpreter because they are LEP must pay for that interpreter); Ark. Code Ann. 16- 89-104(b)(2) (permitting court to decide how fee for services of interpreter for defendant shall be paid, but exempting acquitted defendants from obligation to pay); Ark. Admin. Office of the Cts., Dist. J. Benchbook, Form Misc. 11 (listing “Interpreter Fees” as a category of “Criminal and Traffic Fees, Restitution and Forfeitures” to be collected by the district courts), available at http://courts. state.ar.us/judicial_education/documents/District_Judges_Benchbook_v2.pdf; Arrieta v. State, 878 N.E.2d 1238 (Ind. 2008) (holding that the courts can charge non-indigent criminal defendants for the cost of interpreters who interpret only for them, not for the entire courtroom); Fla. Stat. § 29.0195 (requiring trial courts to recover the cost of an interpreter from parties with the present ability to pay); Fla. 6th Jud. Cir., Interpreters, available at http://www.jud6.org/LegalCommunity/ Interpreters.html (“If you are not indigent, the Trial Court Administrator is required by law to recover interpreter costs on behalf of the state. If you are found to have the ability to pay, you will be billed after your hearing for the costs of the service provided to you, which are normally $35 to $68 an hour with a two hour minimum, plus travel costs.”); Baton Rouge City Court, En Banc Order Regarding Interpreter Appointment Procedure (July 1, 2003) (“Pursuant to C. Cr. P. Art. 887, a defendant found guilty or who pleads guilty to a criminal/traffic matter, and who requires the need of a foreign language interpreter, shall be cast for all costs associated with the appointment of the foreign language interpreter . . . .”); Nev. 8th Jud. Dist. R. Prac. 7.80(a) (providing that interpreter costs will be paid for indigent criminal defendants, but that in other cases the party requesting the interpreter must pay before interpreter services are provided); 28 Okla. Stat. Ann. § 153.A.10 (requiring the court clerk to collect from all convicted defendants the actual cost of all interpreters for LEP individuals): id. § 153.H (providing that prior to conviction parties cannot be required to pay, advance or post security for interpreter services); id. § 153.K (providing that for indigent defendants the court “may” waive all or part of the interpreter services costs, or require the payment of those costs in installments); Tenn. R. Crim. Proc. 28 (requiring the cost of an interpreter to be taxed to non-indigent criminal defendants); Utah Code Ann. sec. 7B-1-146(3) (allowing judges to impose the cost of an interpreter on non-indigent criminal defendants); Utah R. Jud. Admin. 3-306(12)(B) (1) (stating that justice courts need only pay for interpreters for indigent criminal defendants).

The Report cites Indiana statute IC 34-45-1-3 for "a mandatory written requirement that interpreters be appointed in all civil cases" and IC 34-45-1-4(b) to illustrate that, in Indiana, whether government pays interpreters appointed by the court and/or whether government charges litigant for the cost is within the court’s discretion in civil cases. See p. 19 [24 in PDF] of the Report to see a map comparing Indiana and other states re civil cases.

Finally, accompanying the Court's budget request to the 2009 session of the General Assembly was this letter of transmittal from Chief Justice Shepard. Item #5, at pages 7-8 discusses Indiana's current efforts to address the problem.

Courts - "Automakers’ Swift Cases in Bankruptcy Shock Experts"

In fewer than 45 days each, General Motors and Chrysler swept through government-sponsored sales in bankruptcy court — quick tours that most people in the legal community thought impossible not long ago.

The swift action has riveted bankruptcy lawyers and law professors, who say the cases will be widely studied this fall when law students return.

“It is remarkable,” said James J. White, a professor at the University of Michigan Law School in Ann Arbor, who is planning a three-day seminar on the cases in his bankruptcy class.

Judge Robert E. Gerber of United States Bankruptcy Court in New York approved the G.M. sale late Sunday, although he issued a four-day stay that blocks final action until Thursday.

The sales, handled under Section 363 of the federal bankruptcy code, raised the profile of a tactic once used primarily to shed failing plants or unneeded equipment, and was not considered until a few years ago as a substitute for a complete restructuring.

“Twenty years ago, you would not have been able to do a 363 sale of an entire company,” said Mary Joanne Dowd, a partner in the financial and bankruptcy restructuring practice at Arent Fox in Washington.

While the cases are not likely to bring about the end of old-style restructurings, the sheer scope of G.M. and Chrysler show a Section 363 sale can apply to companies of any size, lawyers say.

For businesses that follow similar legal strategies, the G.M. and Chrysler cases could pave the way for a faster trip through court. For creditors, it could mean less time to reach a deal, especially in situations where companies face strict deadlines from lenders, as the two carmakers did with the government.

In such cases where the government plays a major role, lawyers are likely to feel they have less control than in traditional bankruptcies. * * *

Treasury officials pointedly told G.M. executives that the government, which was financing the company’s stay in bankruptcy, did not have the patience or resources for a long case, and would only provide financing under a Section 363 sale.

The administration official also said that G.M.’s case moved so quickly in part because it had the benefit of an “icebreaker” from Chrysler’s quick tour through bankruptcy.

In his 95-page opinion Sunday, for example, Judge Gerber repeatedly cited the discussion of issues from the opinion by Judge Arthur J. Gonzalez, who approved the Chrysler sale last month.

Professor White said the Supreme Court’s ruling against pensioners from Indiana, who sought to block the Chrysler sale, also was likely to deter similar actions in the G.M. case.

In fact, so far only one lawyer has challenged Judge Gerber’s approval of the sale: Steve Jakubowski, who represents five accident victims. And even he will not ask to delay the closing of the G.M. sale, unlike the Indiana state funds that objected to Chrysler’s turnaround plan.

“I personally didn’t have any problem with the speed of it,” he said of the two cases. “The fact is, the companies were dead.”

Monday, July 06, 2009

Law - "As BigLaw Stumbles, SmallerLaw Picks up the Pace"

That is the heading to this entry in the WSJ Law Blog today, reported by Ashby Jones. It begins:

The well-chronicled woes of BigLaw over the last 18 months or so began, it’s widely agreed, when deal-making all but dried up in the wake of the credit crunch. Since then, however, the troubles have metastasized; at many firms, litigation work — traditionally thought of as countercyclical — has unexpectedly dipped as well.

Part of the reason behind the latter trend, it seems, is chronicled in a WSJ story today by Chris Herring, who writes: “to cut costs during the recession, U.S. businesses increasingly are handing work to less expensive small and midsize firms, typically those with fewer than 200 attorneys.”

Things are so good at some smaller firms that they’re actually doing the unthinkable in this era of mass layoffs: hiring attorneys to keep up with new business. In return, the larger firms are adjusting to compete with their smaller brethren, which have more flexibility in billing, thanks to lower fixed costs like payroll and rent.

Ind. Decisions - One Indiana decision today from 7th Circuit

Plaintiff John Castronovo, as
assignee of Doug Lavery, Ltd. (“Lavery”) and Kenneth
Lively (“Lively”), sued National Union Fire Insurance
Company of Pittsburgh, PA (“National Union”) to collect the unpaid balance of a $6 million consent judgment
entered against Lavery and Lively in the underlying
litigation. Plaintiff alleges that Lavery and Lively were
additional insureds under the National Union policy
and entitled to indemnification for that portion of the
consent judgment not satisfied by other insurers. On the
parties’ cross-motions, the district court entered summary
judgment for National Union and against plaintiff
with respect to all claims, ruling that National Union is not
obligated to pay the balance of the consent judgment.
Plaintiff appealed, and we now affirm. * * *

National Union did not have a duty to defend and
provide coverage to Lavery and Lively. Therefore, it
did not breach any duty, and it was not estopped from
asserting the consent clause as a bar to coverage. It was
able to assert the consent clause, and Lavery and Lively
materially breached a condition precedent to coverage
under the National Union policy by failing to obtain
National Union’s agreement prior to entering into the
consent judgment. National Union is not obligated to
indemnify Lavery and Lively under the consent judgment.

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

Emily Jo Coryell (Wife) appeals the trial court’s dissolution decree dissolving her ten-year marriage to Brett Coryell (Husband). Wife presents the following issues for our review:
1. Did the trial court err in adopting, virtually verbatim, Husband’s proposed findings of fact and conclusions of law?
2. Did the trial court abuse its discretion in dividing the marital estate?
3. Did the trial court abuse its discretion in awarding physical custody of the parties’ minor children to Husband?
4. Does Indiana’s relocation statute violate the Equal Protection Clauses of the United States and Indiana Constitutions? * * *

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions for the trial court to include the tax refund as an asset of the marital pot, and correct typographical errors in the amount of "Husband's Brokerage Acct." (i.e., change the figure to $4779 from $4799 -- see footnote 4, supra), and the amount of Husband's pre-marital contribution to show a set-off of $82,343 (rather than $83,343 -- see footnote 8, supra). The trial court must then recalculate the division of the marital estate. Judgment affirmed in part, reversed in part, and remanded.

Gitte Laasby reports today in the Gary Post-Tribune in a long stroy that begins:

MERRILLVILLE -- For years, ArcelorMittal Burns Harbor has been stockpiling a massive 700,000 tons of dark gray, acidic, steel-making waste directly on the soil on the company's property -- less than 500 feet from Lake Michigan.

The waste pile is 500 feet long. Its height dwarfs even large semi trucks driving by. Such waste typically contains heavy metals such as lead, zinc, cadmium and arsenic.

Yet, neither ArcelorMittal nor the Indiana Department of Environmental Management has tested whether any contaminants have leaked from the pile into Lake Michigan. And they haven't told the public exactly what's in the waste or for how many years it has been open-dumped there.

Law - "Are Law Schools Relevant to the Future of Law?"

Here is a post by William D. Henderson, Associate Professor of Law at IU Mauer School of Law, on the blog Empirical Legal Studies. A sample:

Frankly, amidst the meltdown of the entry-level lawyer job market, I am surprised by the lack of significant interest or attention by legal academics, at least as judged by blogosphere traffic. It is all-too-easy to assume that the market will rebound next year, or 2011 at the latest. To this I might ask, "What is the basis for the optimism?" The salad days of 2004 to 2008 were driven by a Wall Street juggernaut that destroyed the U.S. investment banking industry, which was the historical client basis for the industry's most prestigious law firms. And here is a more pointed follow-up question, "How much does the legal economy need to recover so that our students can to support their debt load?" See, e.g., Jonathan Glater, Finding Debt a Bigger Hurdle than the Bar Exam, NY Times, July 1, 2009. Obviously, the answer to this question requires some careful study and some math. Vague appeals to the business cycle just won't cut it.

Ind. Law - "It's the Law: No guns for domestic batterers"

Ken Kosky's NWI Times'"It's the Law"column today, July 6th, looks at "a recent U.S. Supreme Court decision that could take away the guns of some convicted people who thought they could legally have guns." The Fe. 24, 2009 opinion, U.S. v. Randy Edward Hayes, is available here.

Today's story, which is longer than usual, begins:

VALPARAISO | Over the years, thousands of region residents charged with domestic battery -- even for something as simple as slapping the person with whom they live -- have agreed to plead guilty to battery instead of domestic battery to avoid losing the right to possess guns.

But they now face some bad news.

The U.S. Supreme Court recently decided -- in the case of United States v. Randy Edward Hayes -- that even if a person's conviction isn't labeled domestic battery, if the underlying facts show that domestic violence occurred, the person can't possess firearms. The decision could have a major effect locally and nationally.

Valparaiso attorney Bryan Truitt estimates there have been 5,000 Northwest Indiana cases since 1996 involving people who pleaded guilty to a lesser offense in order to keep their guns so they could, for instance, continue to hunt game or work their job as a security guard.

All of those people now could face federal charges of illegal gun possession and lose the right to have guns.

"This is a practical nightmare," Truitt said, adding that many gun owners probably are unaware of the court decision and could become ensnared by it.

The problem with the decision, Truitt said, is it treats people involved in minor one-time battery offenses the same as dangerous and unbalanced people who legitimately should not have guns.

The federal Gun Control Act of 1968 prohibits felons from possessing firearms, and in 1996 Congress extended the prohibition to include people convicted of misdemeanor domestic battery.

In the third ruling, the Court expanded the reach of a 1996 federal law that bars possession of guns by a person convicted of a domestic violence crime that was a misdemeanor. The law applies, the Court said in U.S. v. Hayes (07-608), whenever the battered victim was in fact the wife or other family relative of the offender. Thus, while such a domestic relationship must be proved beyond a reasonable doubt, it is not a necessary element of the crime, the decision found. “It suffices for the government to charge and prove a prior conviction that was, in fact, an offense committed… against a spouse or other domestic victim,” the Court explained in the 7-2 decision. Justice Ginsburg wrote for the majority. The Chief Justice and Justice Antonin Scalia dissented.

So reports Tom Moor of the South Bend Tribune today in this story. Some quotes:

When a death investigation is being played out every day in the local or national media, perhaps the two words that can cool the story down the quickest are: toxicology tests.

Whether it's for the "King of Pop" Michael Jackson or local ophthalmologist Dr. Philip Gabriele, toxicology reports — which allow officials to see whether drugs were in the person's system — often take weeks.

The common mantra among officials, national or local, is six to eight weeks. The Indiana state lab right now has a delay of 12 to 18 weeks.

So how long does a toxicology report actually take? According to one expert, only about a week to 10 days, usually. Sometimes just a day or two.

Then what causes the delay?

"It's just because of a backlog in cases," said Dr. James Klaunig, who is a Robert B. Forney professor and director of toxicology and an associate director of the Cancer Center at Indiana University.

Klaunig said four to eight weeks is reasonable, and he isn't sure how the state lab could be as backed up as it is. He added that aside from the logjam, individual cases can take longer if pathologists find an unusual drug. * * *

South Bend Medical Foundation forensic pathologist Dr. Joseph Prahlow said it can take a couple of days to a week in some places, to upwards of two months in other areas, based on

a number of factors, most notably how busy the laboratories are. He added that four to six weeks is typical.

Prahlow said toxicology tests are broken down into two parts: a screening test and a confirmatory test. The screening test will identify what substances are in the body, such as cocaine. The confirmatory test will confirm that the drug the is, indeed, in the body and how much was found.

If no drugs are found, the case can go quickly, Prahlow said. But when multiple drugs are discovered, the samples may need to be shipped to a reference lab in a different city or state for further testing.

Prahlow said confirming prescription drugs in the system is relatively easier than finding multiple drugs.

"A lot of it depends on the type of substance you're testing for and how thorough the screen is," Prahlow said.

In a case involving police, pathologists also have to make sure their evidence will stand up in court, which could also prolong the exam.

This week's oral arguments before the Court of Appeals (week of 7/6/09):

Wednesday, July 8th

10:00 AM - Tamatha M. Nealy, et al vs. Shadawn Quinn, et al - The Nealys were injured in an automobile accident. Before trial their insurer paid about $17,000 for the Nealys' medical expenses. A jury awarded about $100,000 for the Nealys' injuries, then the trial court reduced that award by the amount that had already been paid for medical expenses. The Nealys assert that is error because their policy did not provide for such a set-off and the pretrial medical payments were not an "advanced payment" of their uninsured motorist benefits. The insurer argues the Nealys are seeking an improper double recovery. The Scheduled Panel Members are: Chief Judge Baker, Judge May and Barnes. [Where: Indiana Court of Appeals Courtroom - WEBCAST]

Next week's oral arguments before the Court of Appeals (week of 7/13/09):

None currently scheduled.

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

Sunday, July 05, 2009

Ind. Decisions - More on: Legal filings indicate Office of Attorney General and the Indiana Gaming Commission to be somewhat at odds

The ILB has updated this June 29th entry to include additional filings documenting a "war of words" that had been going on in filings before the Indiana Supreme Court, between the Office of the Attorney General and the Indiana Gaming Commission, culminating in this Supreme Court Order of June 30th.

When time allows, the ILB plans to write more about the Office of the Attorney General, which is not a constitutional office, with respect to the constitutional separation of powers.

Courts - More on: "A lesson for every Internet user: Nothing is private"

On June 15, 2008, the ILB quoted from an editorial in the Seattle Times:

THE roiling water in which Judge Alex Kozinski finds himself should be a lesson for every Internet user: Nothing is private.

Kozinski, the chief judge of the 9th U.S. Circuit Court of Appeals, last week suspended a trial on a Los Angeles obscenity case when the sexually explicit contents of his own Web site were reported by the Los Angeles Times. That this learned man, one of the highest-ranking federal judges, sometimes mentioned as a worthy candidate for the U.S. Supreme Court, would be stung by an all-too-common pitfall of the online world should make everyone rethink their online habits.

A 2006 Career Builder survey found that a little more than half of hiring managers who used Internet searches to screen job applicants eliminated candidates based on what they found. The rate was 63 percent for those using searches of social-networking sites.

School districts and law-enforcement officials, including Washington Attorney General Rob McKenna, repeatedly try to drive home the point about the vulnerability, especially of children, when too much is revealed on the Internet.

More than a year later, Scott Glover had this story July 3rd in the LA Times. The headline: "Alex Kozinski admonished for raunchy Internet files: The 9th Circuit's chief judge showed 'poor judgment,' panel finds." From the story:

A panel of federal judges admonished Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, on Thursday for being "judicially imprudent" and "exhibiting poor judgment" by placing sexually explicit photos and videos on an Internet server that could be accessed by the public.

Kozinski's conduct had "created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary," according to the panel's opinion, written by Anthony J. Scirica, chief judge of the U.S. 3rd Circuit Court of Appeals.

The judges ruled, however, that Kozinski's actions did not constitute judicial misconduct. The disciplinary proceedings should end with the public admonishment, they wrote, noting that in testimony in a closed-door hearing, Kozinski had stated that he had "caused embarrassment to the federal judiciary," had apologized and had "committed to changing his conduct to avoid any recurrence of the error."

The opinion quoted Kozinski as acknowledging that some of the material he maintained on his server was "highly offensive," "gross," and "demeaning." * * *

The proceedings stemmed from a Los Angeles Times article published in June 2008 when Kozinski was presiding over a high-profile obscenity trial in Los Angeles. The Times article reported that Kozinski had "maintained a publicly accessible website featuring sexually explicit photos and videos" but had intended it to be private.

The Times story described several of the files, including a photo of two nude women posed on all fours and painted to look like cows.

After being interviewed for the article, Kozinski immediately blocked public access to the site. Two days after the story was published, he declared a mistrial in the obscenity case and called for an investigation of his own actions. Because Kozinski is chief judge of the 9th Circuit, the case was transferred to the 3rd Circuit.

The story includes a link to the 41-page June 5, 2009 Memordanum Opinion of the Judicial Council of the 3rd Circuit. It sets out the minimum information that anyone who makes files available, either from a home-server, or via a web hosting company, MUST KNOW going in.

Here are some quotes from the opinion:

[Judge Kosinski had] a personal computer in his home, which had been connected to the Internet using web server software.

Through a combination of improper security configuration and carelessness on the part of the Judge, the aggregation of retained files became accessible to the public. Uninvited visitors to the web server who knew the name of the specific subdirectory on the Judge’s computer could access the files, including the sexually explicit material. At least one Internet search engine catalogued the contents of the subdirectory containing the sexually explicit material, with the consequence that Internet searchers could locate the material. The Judge eventually became aware that members of the public could access the files, although he did not know about the search-engine cataloguing. Despite some small steps to remove offensive material from potential public view, the Judge neglected to complete this task or to disconnect the computer from the Internet. The consequence of the Judge’s possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was the public controversy in June 2008. * * *

In 2002, the Kozinski family decided to connect the family server to the Internet as a convenient means to access personal files while away from home. Through the use of web server software, the Judge could access the files and subdirectories in the alex directory using a web browser via the Internet at http://alex.kozinski.com.[6] This access was enabled by Apache server software.

From footnote 6:

http://alex.kozinski.com was the Internet location, or uniform resource locator (URL), of the alex directory. Subdirectories of the alex directory could be located by adding an extension to the end of the alex directory’s URL. For example, the stuff subdirectory was accessible at http://alex.kozinski.com/stuff.

This should set off red flags for those you who do much work on the internet. (When I read the initial stories that someone had "hacked" into the Judge's computer, it was clear to me what actually had happened.) If you set up a web-accessible directory of files, without inserting into the directory an html "index" page (such as a page saying "welcome" or "you are not authorized," then when a user types in the address, most systems will return a list of all the files in the directory. In the Kosinski case, when one typed in "http://alex.kozinski.com/stuff," they got the directory list of all his personal files, linked to viewing. More from the opinion:

Although the Judge did not intend to provide uninvited public access to alex.kozinski.com, he did use it to share links to personal photographs with family and “a very close circle of friends” (numbering about two dozen) — all “people [he] knew very well” — or to share links to legal writings with fellow judges from around the world. * * *

No username or password was required to access alex.kozinski.com and/or to view a list of the files and directories on the Kozinski family server. The Judge testified that when the server was first connected to the Internet in 2002, he “did not give any thought to security” because he considered alex.kozinski.com to be “just a private — a way of privately accessing [his] files.” The Judge relied on not distributing the name of alex.kozinski.com and its subdirectories other than to family or close friends — a method known as “security through obscurity” — as a means of protecting against uninvited public access to that material.

More:

In 2004, the Judge sent a link to a video of himself bungee jumping as part of a tongue-in-cheek message for posting on Underneath Their Robes, a blog about the federal judiciary. The video was located in the stuff subdirectory, and the link sent by the Judge had the URL http://alex.kozinski.com/stuff/jump.avi. * * * Internet users who visited the page of the Underneath Their Robes blog containing the posting about the Judge and clicked on the jump.avi link, or examined the HTML code for that page of the blog, could see the URL http://alex.kozinski.com/stuff/jump.avi. The posted link therefore revealed the URL for the jump.avi file as well as the name of the stuff subdirectory, compromising its “security through obscurity.” Accordingly, any person who viewed the relevant page of the Underneath Their Robes blog could learn of the existence of the stuff subdirectory and could gain access to it and its files by typing the URL http://alex.kozinski.com/stuff into a web browser.

The Judge was not aware at the time that the public could gain access to his subdirectories in this manner.

The opinion goes on to detail how the Judge gradually, over a period of years, discovered that people could access his files, culminating with the LA Times story on June 11, 2008. Only then did the Judge take the site off the interest. Before that time, his security efforts were minimal. Never was there an effort to password protect the site or any of the sub-directories.

"Security through obscurity" became a thing of the past years ago, when Yahoo and then Google began scanning the entire internet and indexing its contents for searching, but the Judge was seemingly unaware. Again, as the Seattle Times wrote a year ago: "The roiling water in which Judge Alex Kozinski finds himself should be a lesson for every Internet user: Nothing is private." Know what you are doing.

Wider Implications. Is truncating a website illegal "hacking"? If it is, many of us are guilty of doing what some readers of Underneath Their Robes did after viewing the bungy jumping video the Judge had sent the link to: http://alex.kozinski.com/stuff/jump.avi. Using their browsers, they truncated the link to http://alex.kozinski.com/stuff/ to see what else was in the directory. They were rewarded, because the Judge did not put an index page in the directory.

But an entry I read some years ago on Phillip Greenspun's Weblog shows that Harvard business school, at least in 2005, considered truncating a website addess to be "hacking" that would result in denial of admission to the school:

[The Harvard business school admissions setup was such that truncating] the URL in the “Address” or “Location” field of a Web browser window would result in an applicant being able to find out his admissions status several weeks before the official notification date.

This would be equivalent to a 7-year-old being offered a URL of the form http://philip.greenspun.com/images/20030817-utah-air-to-air/ and editing it down to http://philip.greenspun.com/images/ to see what else of interest might be on the server.

Someone figured this out and posted the URL editing idea on the BusinessWeek discussion forum, where all B-school hopefuls hang out and a bunch of curious applicants tried it out.

Now all the curious applicants, having edited their URLs, are being denied admission to Harvard. * * *

Thanks to Harvard Business school the term now means “people of average IQ poking around curiously by editing URLs on public servers and seeing what comes back in the form of directory listings, etc.”

Ind. Gov't. - "Some ideas on improving the legislature"

Matt Tully of the Indianapolis Star today has a column today listing five suggestions for a better-functioning legislature. In brief, they are:

1. Create a nonpartisan group to draw legislative district maps that don't take political considerations or incumbent clout into account.

2. Indiana should impose new restrictions aimed at reducing the clout of lobbyists.

3. The legislature should limit the number of years members can serve as party leaders or committee chairs.

4. Legislative hearings should be held in the evenings and away from the Statehouse.

5. Voters should pay more attention.

The NY Times had an editorial July 1st headed "New York’s Defective Legislators." Here are the suggestions:

A VOTERS’ REVOLT The only sure route to change is through the ballot box — if voters will remember the 2009 fiasco in the 2010 elections. New Yorkers should toss all of these bozos out of office, regardless of whether the incumbent is a Democrat or a Republican, friend or foe. It is the responsibility of both parties to recruit candidates for the primaries to give voters a choice in places where one party is historically dominant, like New York City, or has an unnatural edge through redistricting.

The reason for a housecleaning is this: Any reform of the Legislature must be started or even completed by the Legislature. That includes laws, constitutional amendments and even a constitutional convention, an idea about which we have grave doubts but which is gathering momentum. * * *

HONEST MAPMAKING The first item on the reform list should be drawing districts honestly. A New York State legislative seat is so secure that no scandal, not even a recent conviction, can reliably defeat an incumbent. The prime reason is that legislators create their own districts. Every 10 years, each legislator with any power tells the mapmakers: Put my pal’s house in my district and my enemy’s house out. A few of these districts look like something wiggling under a microscope, but they keep their hosts in office until death, retirement or, with increasing frequency these days, time spent in jail.

The Legislature and Gov. David Paterson should immediately agree to create a nonpartisan commission like the one in Iowa that draws districts fairly and presents the map for a yes or no vote. (A no vote means the commission, not the legislators, re-draws the maps.)

This should be done now for the 2012 mapmaking.

CLEANER MONEY New York’s campaign finance system is a disgrace. When the Legislature is in session, lawmakers spend every night harvesting campaign funds, often using loopholes as big as a bank. Write “party housekeeping” on the check, and it can have as many zeros as you want. Corporate subsidiaries have a field day. And the lobbyists who write the checks then also write the laws. Public financing should be the goal, but even real, enforceable limits would be a start.

COMPETITIVE ELECTIONS Anybody who wants to challenge a party-sanctioned candidate in New York will find a rigged system. A challenger faces highly paid party lawyers whose “blood sport,” as they call it, is to make that candidate spend too much time and money in court. The idea is to challenge signatures on petitions, name by name. No ZIP code? No middle initial? Then 1,000 signatures turns into 449, one too short to get on the ballot. * * *

CREATE A REAL, WORKING LEGISLATURE New faces won’t help if the Albany system stays the same. Only the majority party leaders have power now, controlling 95 percent of the money for districts, the best offices, the best computers, the most staff. The minority party gets crumbs. It’s time to share that wealth evenly and fairly. * * *

Finally, the Legislature needs a new ethics commission — one that is not controlled by the Legislature. If ever a group of politicians needed an overseer, this is it. * * *

The best bet for New Yorkers is to demand an honest mapmaking commission, campaign finance reform, ballot access reform, ethics reform and reforming the house rules. Then keep a scorecard for next fall’s elections — and cast your ballots carefully.

Saturday, July 04, 2009

Law - "States Plot New Path to Tax Online Retailers"

Geoffrey A. Fowler and Erica Alini had this report in the July 3rd Wall Street Journal. It begins:

Amazon.com Inc. and other e-commerce companies are winning some skirmishes against cash-strapped states that want to force them to collect sales taxes, but their victories may be short-lived.

Several states are contemplating new laws or revisions to existing law that could eventually force online retailers to pony up. North Carolina, for instance, has a two-pronged approach to going after online retailers. If its current efforts to tax online sales fall through, the state's revenue secretary plans to interpret existing laws to require companies that have marketing affiliates collect sales taxes. * * *

An effort by some states and retailers to streamline sales tax laws eventually could be used to force e-commerce companies to collect tax in 20 states. Congress has considered bills that would allow states that meet certain uniformity and simplification standards in their tax systems to demand that out-of-state sellers collect sales taxes.

These new battle lines are being drawn just as the dust settles on the latest confrontations. Over the past month, lawmakers in New York, Rhode Island, North Carolina and Hawaii passed legislation that would force e-commerce companies to collect sales tax if they have in-state online-marketing affiliates, people who get a commission from sales via their Web sites or blogs. The states argue that that those affiliates amount to sales agents with a physical presence, while e-commerce companies say they're more akin to advertising channels.

Law - "Tax Bill Appeals Take Rising Toll on Governments "

Jack Healy of the NY Times has a long report today on falling property values and sometimes rising property taxes. The story begins:

Homeowners across the country are challenging their property tax bills in droves as the value of their homes drop, threatening local governments with another big drain on their budgets.

The requests are coming in record numbers, from owners of $10 million estates and one-bedroom bungalows, from residents of the high-tax enclaves surrounding New York City, and from taxpayers in the Rust Belt and states like Arizona, Florida and California, where whole towns have been devastated by the housing bust.

“It’s worthy of a Dickens story,” said Gus Kramer, the assessor in Contra Costa County, Calif., outside San Francisco. “These people are desperate. They know their home’s gone down in value. They’ve watched their neighborhoods being boarded up. They literally stand in there and say: ‘When can I have my refund check? I need to feed my family. I need to pay my electric bill.’ ”

The tax appeals and reassessments present a new budget nightmare for governments. In a survey conducted by the National Association of Counties, 76 percent of large counties said that falling property tax revenue was significantly affecting their budgets, said Jacqueline Byers, the association’s research director.

Officials in some states say their property tax revenue is falling for the first time since World War II.

The recession has already taken a significant toll on states’ budgets, as rising joblessness, a weak business climate and a drop in consumer demand have cut sharply into receipts from taxes on sales, personal income and business earnings.

The pain at the state level is trickling down to county and local governments. To compensate, about 10 percent of large counties are raising the tax rates associated with home values to minimize the revenue loss, the county association said.

Even so, most counties simply have to absorb the lost revenue. Municipalities are laying off workers, renegotiating labor contracts, freezing salaries and cutting services.

Ind. Decisions - "Court limits sex offender residency law"

Charles Wilson of the AP reports today on the Supreme Court decision June 30th in the case of State of Indiana v. Anthony W. Pollard. (See the ILB summary of the decision in this July 1st entry..)

From today's story:

Convicted sex offenders who lived near schools or other places frequented by children before a state law restricting their residency was enacted in 2006 would not have to move under a ruling by the Indiana Supreme Court.
Advertisement

The court ruled this week that the residency law violated the Indiana constitution by retroactively punishing Anthony W. Pollard, a Blackford County sex offender who died in December.

Pollard had owned his home in northeastern Indiana for about 10 years when he was convicted of a sex offense against a child in 1997. He was then charged in January 2007 with violating the 2006 law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center.

Blackford Superior Court Judge John Forcum dismissed the charge as unconstitutional, and the state appealed.

The Court of Appeals and the state Supreme Court both upheld Forcum's decision.

The state Supreme Court decision said the residency law prevents a sex offender from living in his home even if he bought it before the law took effect and even if a school or youth center moved within 1,000 feet of a home where he already lived.

"Although the statute does not affect ownership of property, it does affect one's freedom to live on one's own property," Justice Robert Rucker wrote. "A sex offender is subject to constant eviction because there is no way for him or her to find a permanent home in that there are no guarantees a school or youth program center will not open within 1,000 feet of any given location." * * *

The decision was the latest by the state Supreme Court to find that certain laws regarding state oversight of sex offenders violate the Indiana constitution's ban on laws punishing people for acts that were legal when they were committed.

In April, the court overturned a man's conviction for not registering as a sex offender because he had already completed a sentence for child molestation before the state's Sex Offender Registration Act was passed.

In light of that ruling, the Pollard decision "was not surprising," said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council.

However, he said the ruling might be interpreted differently depending on the circumstances.

"For example, I would hope that the residency restriction law would apply to a person convicted of child molesting in 2005 and who then intentionally moved across the street from an elementary school in 2009," Johnson said in an e-mail.

Ind. Courts - "St. Joseph County courtrooms will soon be outfitted with computers and Internet access, revolutionizing judges' access to information on the bench"; a look at Rule 2.9(C) limits on independent research

Madeline Buckley today has this story in the South Bend Tribune. Some quotes:

St. Joseph County courtrooms will soon be outfitted with computers and Internet access, revolutionizing judges' access to information on the bench. * * *

Chief Judge Michael Scopelitis said the technology will allow judges to do legal research and access state and county records on the bench without having to hold a recess.

“As trials progress, so many issues come up that need to be looked at, and the judge has to take a recess to do that,” Scopelitis said. “So the goal is to have computers for the judge and bailiff in every courtroom.”

Rather than being ahead of the curve in bringing Internet into the courtroom, Scopelitis said, St. Joseph County is actually catching up.

“I have a feeling in terms of the counties our size, we're probably behind,” he said.

Along with allowing the judge to do legal research on the bench and look up records, Internet access in the courtroom will allow a judge to send a protective order through to the police immediately. * * *

Judge Roland Chamblee said he has used a computer in the courtroom in the past, but strictly as a case management tool, using it for scheduling and to communicate with staff.

“We won't know how useful they'll be until they are installed, but anything that will help speed up the process of a trial will help,” he said.

The ILB has had a number of entries recently about jurors using Twitter, iPhones, or doing computer research during the course of a trial.

(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control. * * *

Comment [6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.

The ILB has also located this Sept. 2008 article by Elizabeth G. Thornburg of Southern Methodist University - Dedman School of Law, titled "The Curious Appellate Judge: Ethical Limits on Independent Research ." Here is the abstract:

Appellate judges in the twenty-first century find themselves in a world in which litigation - both civil and criminal - involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes.

At the same time, advances in communication technology have brought the world's library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse.

This combination of felt need and ready access has turned a once-marginal concern into a dilemma that affects courts and litigants daily. The problem of judicial research has always been with us, lurking in the margins, and yet we do not have a workable framework for discerning when it is and is not permissible. We can no longer fail comprehensively and rigorously to engage this question, because it is now taking on a central importance to proper judicial decision-making in an increasing number of cases.

The stakes are high. Whether and when judges independently may research cuts to the very heart of our adversary system of justice: these questions implicate directly the ethical role of the judge, the balance between fairness and efficiency, the rights of the parties, and how we view the rule of law.

In 2007, the ABA adopted a new Model Code of Judicial Conduct, and it proposes a rule that ties judicial research to the parameters of judicial notice. This article argues that states should reject the current proposal and adopt instead a rule that provides clear guidance to judges, notice to litigants, and transparency to the judicial system.

BTW, Indiana's rule is based on the ABA mdoel.

Finally, also of interest here is the May 13th, 2008 opinion in the "MySpace case," A.B. v.State of Indiana, where Justice Dickson wrote at p. 2:

As a preliminary matter, we note that the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com ("MySpace"), which is central to this case. Only two witnesses testified at the fact-finding hear-ing, the school principal and A.B.'s mother. No expert witnesses were called. Neither of the witnesses provided knowledgeable and reliable details about MySpace. The primary source of information about MySpace came from the testimony of the principal, whose "understanding [came] from talking to students and trying to go figure how to go about researching this." Tr. at 25. The principal testified: "I don't get on MySpace." Tr. at 36. The Commentary to Canon 3B of the Indiana Code of Judicial Conduct advises: "A judge must not independently investigate facts in a case and must consider only the evidence presented." Notwithstanding this directive, in order to facilitate understanding of the facts and application of relevant legal principles, this opinion includes information regarding the operation and use of MySpace from identified sources outside the trial record of this case.

Friday, July 03, 2009

Courts - Federal Court Tells Out-of-State (Indiana) Wine Stores to Stay Out of New York

New Yorkers who order wine online from retailers in other states are breaking the law, according to a decision handed down Wednesday by a federal appeals court. The ruling is the latest salvo in the war over wine shipping, and only promises to spark further legal fights.

A three-judge panel on the Second Circuit Court of Appeals ruled unanimously that New York's law permitting in-state retailers to ship wine directly to consumers but forbidding out-of-state retailers from doing the same is constitutional and within the state's rights under the 21st Amendment. The ruling upheld a 2007 district court decision, Arnold's Wines, Inc. v. Boyle. An Indiana store and two New York consumers sued to overturn New York's law, arguing that the Supreme Court's 2005 Granholm v. Heald decision, which forbids states from discriminating between in-state and out-of-state wineries, also applies to wine retailers. The district judge dismissed the case and the appellate court has now concurred.

Ind. Courts - More on: Injunction against Governor not needed after all, but interesting

Fearing lawmakers might fail to produce a budget, Hoosier Park and other state gambling sites went to court Tuesday and got an order to prevent a state shutdown in such an event.

Marion County Superior Court Judge John F. Hanley issued an injunction that barred Gov. Mitch Daniels and state agencies from closing casinos and race tracks if a budget had not been approved. Hanley sided with casino operators who said the state had no grounds to close the sites amid the budget crisis.

Daniels had threatened Tuesday to close the gaming sites if a budget had not been approved by midnight. He had claimed that state gaming regulators were nonessential state employees who would be furloughed without a budget.

Could the Governor have threatened to shut down the state lottery? Of course.

Need the lottery have complied? In other words, is the Hoosier Lottery a state agency under the command of the Governor?

Indiana Legislative Insight and Indiana Gaming Insight looked at that question this week and pointed to the federal court decisions in past months holding that the Hoosier Lottery is not a "state agency" and is not "an arm of the State."

About the ILB - Problem reading the ILB from a mobile device?

A reader on vacation in a western state wrote yesterday to say she was unable to access the ILB from her Blackberry -- she got a message saying it was too large. I responded:

Here is what I think may be happening. The ILB "page" that is loaded in when you access the blog is pretty long because it is set to show a set number (I forget exactly how many) entries as you scroll down. So if some of those individual entries were very long, the "page" might total be too big, memory-wise, for your reader. This would vary.

If page length is the problem, this might work -- Looking at the blog entries for one day at a time. Use this link:

That is the link for July 1 entries. If it works, then change the "01" to "02" to see today's entries, etc. Let me know.

Yes, it did work! And another thing you can do, once you are on a specific day's page, is use the arrows at the top of the page to move forward or backwards through the days. (But don't go to "main," because that is the long home page.)

Law - Impact of Ricci on private employers in NE Indiana

Jenni Glenn and Marty Schladen have a story today in the Fort Wayne Journal Gazette headed "Local job tests avoid bias: Applicant quizzes unlikely to defy high court ruling, area experts say." The story begins:

A U.S. Supreme Court ruling this week involving employment likely will have little effect on the practices of northeast Indiana’s private employers, several observers said.

Private-sector employers usually don’t rely on written tests when deciding whom to promote, hire and fire. Those that do are careful to avoid bias based on age, race, gender or other irrelevant factors, they said.

“We don’t do that type of testing,” said Roy Wiley of Warrenville, Ill.-based Navistar International Inc. Navistar subsidiary International Truck and Engine Corp. employs about 1,300 in Fort Wayne. “I can’t imagine any corporation like us does.”

Fort Wayne employment lawyer John W. Bowers said the issue decided by the court was a close one. It said an employer can’t throw out the results of a test just because of the results.

“I don’t know that it’s going to make a great deal of difference,” Bowers said.

The Supreme Court didn’t rule whether the New Haven, Conn., fire department’s test questions were acceptable, said George Raymond, vice president of human resources and labor relations for the Indiana Chamber of Commerce. The decision said employers couldn’t use tests to discriminate against racial groups. It might encourage employers who use tests to review them to ensure they’re fair, he said.

Two local employers – Grabill Bank and Indiana Michigan Power – say the ruling won’t change the aptitude tests they give job applicants.

Law - "Law Firm Cost Recovery Is Here to Stay"

An article today by Robert C. Mattern at Law.com details the results of a survey on what law firms recover from clients for their "support services operation -- reprographics, facsimile, printing, scanning, overnight services and digital services (litigation support). Additional areas covered in the survey were legal research, telephone, word processing, catering and contract attorneys."

Ind. Decisions - Federal judge throws out stun belt conviction

From an ILB report April 26, 2007 on the Supreme Court opinion in the case of John Stephenson v. State of Indiana, quoting from a story in the Evansville C&P: "Among the nine issues Stephenson's appellate attorneys raised was the fact that some jurors knew that Stephenson was made to wear a stun-belt restraint device during his trial. The supreme court found that was not grounds to reverse Stephenson's conviction or death sentence."

In a 2-1 decision, a panel of the 7th U.S. Circuit Court of Appeals in Chicago on Tuesday affirmed a ruling by District Judge John Daniel Tinder that Wrinkles could not demonstrate prejudice because the jury was not aware he was wearing the stun belt. * * *

At the time of the trial, Vanderburgh Circuit Judge Richard Young informed Wrinkles he had to wear a shackles or a stun belt because it was the court’s policy. A stun belt is a battery-powered device devices designed to deliver electric shocks to wearers if they become violent.

In 2001, the Indiana Supreme Court banned the use stun belts to restrain defendants in courtrooms, ruling the devices could interfere with a person’s defense. That ruling was the result of the appeal by Wrinkles.

But the high court rejected Wrinkles’ claim that his attorneys were ineffective because they did not object to him being forced to wear the belt. Wrinkles’ trial attorneys chose the device over shackles because they believed it would not be visible to jurors.

Although Wrinkles presented affidavits from three jurors who claimed to have seen the stun belt during the trial, Tinder ruled that Wrinkles did not prove that the belt was visible or that the jury knew about it. The Appeals Court upheld that finding.

FORT WAYNE, Ind. — The death sentence and guilty verdict of John Matthew Stephenson, 45, convicted in 1997 of a triple murder in Warrick County, were thrown out by a federal judge Wednesday.

U.S. District Judge Theresa Springmann ruled Stephenson did not have effective counsel because his attorney did not object to the defendant having to wear a stun belt in the courtroom, violating his right to presumption of innocence, when he appeared before the jury that convicted him. * * *

Springmann's ruling came in the fourth appeal since Stephenson was condemned to death by lethal injection in June 1997. While awaiting sentencing, Stephenson indicated he welcomed death. * * *

In a previous appeal, Bruce Hargrave, Warrick County's sheriff when the killings occurred, and other law enforcement officers testified: "... That to their knowledge Stephenson posed no security threat and had exhibited no behavior that would demonstrate a specific need for a restraining device at trial." Hargrave declined to comment on Wednesday.

Stephenson has demonstrated that there was an unacceptable risk that impermissible factors came into play in the determination of his guilt. Therefore, he has demonstrated prejudice under both the Holbrook and Strickland standards, and habeas corpus must be granted. Due process mandates that John M. Stephenson is entitled to what he was denied: a trial without restraints unless the State can demonstrate a particularized justification for doing so at his retrial. Therefore, habeas corpus relief must be conditionally granted. “Conditional writs enable habeas courts to give States time to replace an invalid judgment with a valid one.” Wilkinson v. Dotson, 544 U.S. 74, 87 (2005) (Scalia J., concurring). Thus the State of Indiana is free to re-try John M. Stephenson, providing that it files appropriate documents in the State trial court seeking such relief within 120 days of this Order. If he is re-tried, nothing in this Opinion prevents the State from again seeking the death penalty.

Ind. Law - Golf carts in the news

Laura Lane of the Bloomington Herald-Times had this story ($$) June 25th, headed "Golf carts get the go-ahead: Starting July 1, change in state law clears the way for small towns to allow carts on roads." Some quotes:

WORTHINGTON — In just six days, Worthington Town Council president Hal Harp will be street legal in his 1995 golf cart.

He has everything in line to comply with a new state law that allows towns and cities to adopt regulations making golf carts legal on local roads.

“The insurance policy I received today is effective first of July,” he said this week. “I have lights on the front and back, a rearview mirror and also a ‘slow-moving vehicle’ sign bolted on the back.”

He also has a valid driver’s license, another requirement for anyone who wants to take to the streets behind the wheel of a golf cart.

And his town has passed the necessary ordinance allowing the legal operation of golf carts starting July 1, when the state law goes into effect.

For years, small-town residents — including those in Worthington, population 1,452 — have tooled around to nearby businesses and neighbors’ homes in battery-operated carts that once were used only as a way to travel from hole to hole on golf courses. More recently, they have been seen as economical, fuel-saving and very slow modes of transportation. * * *

Harp said golf carts are fine for Worthington, but not a good fit for the streets of other towns, such as Bloomington. For him, he can drive from his house on Edwards Street down to the hardware store, the grocery, the baseball park or even to town hall for council meetings.

“It’s good news for a lot of people here in town who have golf carts,” Harp said. “I was thrilled the state Legislature passed the law, and hopefully we won’t have any major problems. There is a place for them. But they aren’t right for all towns.”

Like Harp, [Town Clerk-Treasurer Gloria Klass] has her golf cart ready to hit the road. All she has left to do is buy liability insurance, required by law. With a safe driver discount, she hopes to purchase a policy for $50 a year.

She usually drives her car two blocks to work, since she has to run errands for the town from her office. But starting Wednesday, she can take the golf cart to work and drive it to the post office, bank and other destinations close by.

She will encounter Harp and others in similar vehicles.

“I’ve already had inquiries from people on how to take care of them and where to get the lights and other things you need to have,” said Harp, who drove his golf cart around town for years until 2008, when the Indiana State Police issued a statement saying golf carts were not legal on the road and that people caught driving them would be ticketed.

Harp said then it was essential that golf cart drivers be careful, stay off heavily traveled roads and follow safety rules. “I think the state Legislature should legalize the use of them and allow the town councils to decide if it is right for their town or not,” Harp said last fall.

He and others lobbied their state representatives to change the law, and they did, making Harp’s wish a reality come Wednesday.

Other towns may soon follow suit; the golf cart issue is on the town council’s July 7 meeting agenda in nearby Bloomfield.

The streets in Daviess County have been littered with outlaw vehicles, slowly holding up traffic in areas that some would call dangerous.

But soon, golf carts will be legal in several cities and towns in the state. Starting July 1, carts with the proper modifications will be legal if the cities and towns a driver lives in passes an ordinance doing so.

Depending on where one lives in Daviess County, the debate on the ordinance may come as soon as the law takes effect. Town council members in Odon, Montgomery and Plainville said this week the ordinance will be discussed at their July meetings.

“We’ll probably present it for a vote in our July meeting,” Odon Town Council President Keith Bechtel said.

Bechtel went on to say the council had discussed the ordinance at a meeting in June and asked its attorney to draw up the ordinance.

Another town board member, Tommy Noble, said the town will probably pass the ordinance.

“I’m completely for them and most of the council is for them,” Noble said. “We won’t be charging a (cart) fee, unlike Loogootee.”

Loogootee already passed an ordinance earlier this month, according to Mayor Don Bowling. The fee, $25, will not go into effect until July 1.

In Plainville, Town Board President Dick Heshelman said the issue will be brought up at the board’s next meeting in July. The usual date, the second Thursday of the month, is being changed for July, Heshelman said.

Washington Mayor Larry Haag said Thursday the city is looking at the law and asked City Attorney Jeff Norris to research it, but could not say if the council would see or vote on an ordinance in July.

“There’s been some discussion and we are continuing to do some research,” Haag said.

A message was left with Elnora Town Board member Jerry Beck.

The largest issue on the carts may be in Montgomery, where many carts can be seen on the town roads. Board President Mike Healy said the town board will discuss the matter but he said “on a personal basis, I don’t want (an ordinance.)”

“I can’t speak for the rest of the board,” Healy said. “But I don’t think they are safe to be on city streets.”

Earlier this summer, accidents have been reported in the town from golf carts. On May 30, a child was taken to Daviess Community Hospital after a cart flipped over onto her. On May 20, a 12-year-old girl sustained injuries to her legs after a cart accident in Montgomery.

Lebanon Mayor Huck Lewis helped put up new golf cart restriction signs Tuesday with street department staff. Twelve new signs went up Tuesday on Ind. 39, Ind. 32, Indianapolis Avenue and Lafayette Avenue. A new ordinance created in the state legislature’s last session allows cities and towns to decide whether golf carts are allowed on state highways or not, Lewis said. Lebanon has had an ordinance for a while, but the new bill requires road signs be put up on state highways. Indianapolis Avenue and Lafayette Avenue were exceptions because, though they are not state highways, golf carts are prohibited. Also, starting today, all golf carts must have a permit. “We’re expecting a lot of people at the office,” Lewis said.

Law - "It’s Now Legal to Catch a Raindrop in Colorado"

Kirk Johnson of the NY Times had a story June 28th on "Western" water law. It began:

DURANGO, Colo. — For the first time since territorial days, rain will be free for the catching here, as more and more thirsty states part ways with one of the most entrenched codes of the West.

Precipitation, every last drop or flake, was assigned ownership from the moment it fell in many Western states, making scofflaws of people who scooped rainfall from their own gutters. In some instances, the rights to that water were assigned a century or more ago.

Now two new laws in Colorado will allow many people to collect rainwater legally. The laws are the latest crack in the rainwater edifice, as other states, driven by population growth, drought, or declining groundwater in their aquifers, have already opened the skies or begun actively encouraging people to collect.

“I was so willing to go to jail for catching water on my roof and watering my garden,” said Tom Bartels, a video producer here in southwestern Colorado, who has been illegally watering his vegetables and fruit trees from tanks attached to his gutters. “But now I’m not a criminal.”

Who owns the sky, anyway? In most of the country, that is a question for philosophy class or bad poetry. In the West, lawyers parse it with straight faces and serious intent. The result, especially stark here in the Four Corners area of Arizona, Colorado, New Mexico and Utah, is a crazy quilt of rules and regulations — and an entire subculture of people like Mr. Bartels who have been using the rain nature provided but laws forbade.

See also this companion piece headed "The Legalities of Rainwater Harvesting," by Leora Broydo Vestel.

Updating this ILB entry from May 18th, Sherry F. Colb, Professor of Law and Charles Evans Hughes Scholar at Cornell Law School, had this Findlaw column June 24th, headed "The Highest Court of New York State Protects Privacy from GPS Monitoring."

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

The Longs argue that the trial court erred by granting summary judgment to IVC/Contractors. Specifically, the Longs argue that the trial court erred by finding that the common enemy doctrine applies because: (A) the mechanism that cast mud upon the Longs’ property was surface water and not a natural watercourse; and (B) the water contained mud, silt, and sediment. * * * Under the common enemy doctrine of water diversion, it is not unlawful for a landowner to improve his land in such a way as to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land even where his land is so situated to the land of an adjoining landowner that the improvement will cause water either to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions than the waters were accustomed to flow. * * *

If the water here is characterized as surface water, then the common enemy rule may apply to preclude the Longs’ claims for damages caused by rainwater runoff from the IVC parcel. On the other hand, if the water here is a natural watercourse, then the common enemy doctrine is not applicable. [cites omitted] * * *

Construing the facts and reasonable inferences drawn from the facts in the Longs’ favor, we cannot say that a jury could not determine that the discharge here, with its large content of mud, silt, and sedimentary material, ceased to be mere surface water. From the designated facts, a jury could conclude: that a large mound of surplus dirt was left on the IVC property; that for approximately one year erosion occurred which resulted in extensive amounts of mud, silt, and sedimentary material draining to a collection point, through ditches, culverts, and ravines and into the Longs’ two ponds; that IVC/Contractors took no or few steps to prevent the flow of mud, silt, or sedimentary material with water as evidenced by its repeated violations of “Rule 5;” and that a very large flow of mud or sedimentary material was deposited into the Longs’ ponds causing one of the ponds to fill approximately ten feet at its lowest elevation and the other pond to fill approximately seven feet at its lowest elevation. * * * Therefore, summary judgment on this issue is not appropriate.

For the foregoing reasons, we reverse the trial court’s grant of summary judgment to IVC/Contractors and remand for proceedings consistent with this opinion. Reversed and remanded.[5]
__________
[5] The Longs also argue that the trial court erred in granting summary judgment to IVC/Contractors on the basis that the Longs are non-riparian owners. However, because we reverse the trial court’s grant of summary judgment on other grounds, we need not address whether the Longs are non-riparian owners. Moreover, we note that resolution of this issue may be affected by the fact-finder’s determination of whether the water containing mud, silt, and sedimentary material at issue in this case constituted mere surface water.

Ind. Decisions - Two today from the 7th Circuit

Carol Glaser received medical
treatment from Wound Care Consultants and was later
contacted by an attorney who told her that Wound Care
might have improperly billed Medicaid for her treatment.
She filed this qui tam action under the False Claims
Act (“FCA”), 31 U.S.C. § 3730, seeking recovery as a
relator for money the government paid as a result of alleged false or fraudulent Medicare and Medicaid
claims submitted by Wound Care. But the government
was already aware of the possible improprieties in
Wound Care’s billing practices and had commenced an
investigation more than four months before Glaser
filed her lawsuit. Accordingly, the district court dismissed
Glaser’s complaint for lack of subject-matter
jurisdiction under 31 U.S.C. § 3730(e)(4), which blocks
jurisdiction if the FCA action is “based upon” a “public
disclosure” of the alleged fraudulent conduct “unless . . .
the person bringing the action is an original source of
the information.” Glaser appealed.

The district court correctly concluded that the jurisdictional
bar of § 3730(e)(4)(A) applies to Glaser’s qui tam
suit. The allegations in Glaser’s complaint about Wound
Care’s billing practices are based upon publicly disclosed
information, and Glaser has not shown she is an
original source of the information used to support the
allegations. We therefore AFFIRM the judgment of the
district court dismissing the case for lack of subjectmatter
jurisdiction.

While executing a search warrant
for drugs inside a Fort Wayne, Indiana apartment
building, police officers noticed that the building had
several housing-code violations. Police called a neighborhood
code-enforcement officer, who arrived and determined
that the apartment building must be condemned.
That determination required officers to go door-to-door
and notify the building’s residents that they needed to
leave their apartments. When Frank McGraw, the second floor tenant, arrived on the scene, officers instructed him
to secure his dog and collect the belongings he would
need for a few days. They also explained their need to
inspect his apartment for housing-code violations and to
search for potential stragglers. McGraw consented to the
search three times before leaving the apartment building
with his dog. During that search, police observed
narcotics in plain view, and McGraw was charged with
possession of crack cocaine.

McGraw moved to suppress the evidence, claiming
that any consent he gave was not voluntary but instead
constituted acquiescence to the officers’ display of authority.
The district court denied the motion, finding that
McGraw’s consent was voluntary. McGraw then entered
into a conditional plea agreement, in which he waived
his right to appeal sentencing determinations but preserved
his right to appeal the court’s suppression ruling.
At sentencing the district court classified McGraw as a
career offender under the guidelines and sentenced him
to 262 months’ imprisonment. On appeal McGraw challenges
the court’s suppression ruling and its determination
that he qualified as a career offender.

We affirm. The district court did not clearly err in
finding that McGraw voluntarily consented to the officers’
search. The court analyzed the totality of the circumstances
and determined that despite the way in which
some of the officers phrased their request to
search McGraw’s unit, McGraw voluntarily consented to
their search. Because the court’s conclusion is entirely
plausible in light of the record viewed in its entirety, the court properly denied McGraw’s motion to suppress.
Further, we hold that McGraw waived his right to challenge
the district court’s sentencing determination.

Law - Passes NY bar, but denied character and fitness approval because of amount of outstanding student loan

Or, as the headline in the NY Timesstory by Jonathan D. Glater reads, "Finding Debt a Bigger Hurdle Than Bar Exam." The lengthy story begins:

All his life, Robert Bowman wanted to be a lawyer. He overcame a troubled childhood, a tragic accident that nearly cost him a leg and a debilitating Jet Ski collision.

He put himself through community college, worked and borrowed heavily to help pay for college, graduate school and even law school. He took the New York bar examination not once, not twice, not three times, but four, passing it last year. Finally, he seemed to be on his way.

In January, the committee of New York lawyers that reviews applications for admission to the bar interviewed Mr. Bowman, studied his history and the debt he had amassed, and called his persistence remarkable. It recommended his approval.

But a group of five state appellate judges decided this spring that his student loans were too big and his efforts to repay them too meager for him to be a lawyer.

“Applicant has not made any substantial payments on the loans,” the judges wrote in a terse decision and an unusual rejection of the committee’s recommendation. “Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law.”

Mr. Bowman, 47, appears to have crossed some unspoken line with his $400,000 in student debt and penalties, accumulated over many years.

New York’s courts have overlooked misconduct like lawyers’ solicitation of minors for sex, efforts to deceive judges and possession of cocaine. Those instances have led merely to temporary suspensions from practice.

“It usually takes a pretty significant record of some underlying misconduct to keep you out permanently,” said Deborah L. Rhode, a law professor at Stanford who has studied bar admissions across the states. Excluding someone for having too much debt was odd, she said; the hard questions about loans usually involve applicants who have used bankruptcy to try to escape loans, she said, and Mr. Bowman has not.

Jason Riley has this story today in the Louisville Courier Journal, under the headline "EKU student sues over anonymous post." Some quotes:

The anonymous post appeared online Aug. 13, 2008, under a Richmond Register story, headlined, “You can buy it at the mall, but you can't wear it there.”

The newspaper story, which made national news, was about a college student who'd been kicked out of a central Kentucky mall because she was told the dress she was wearing — bought there the day before — was too short.

But the online poster, identified only as l2bme, claimed to have the true story behind Kymberly Clem's eviction — that she had exposed herself to a woman and her children who remarked on the dress.

A furious Clem alleged defamation, with her attorney filing a lawsuit against l2bme and subpoenaing the newspaper to provide the anonymous poster's identity.

In an era where newspaper Web sites and blogs allow anonymous commenters increasing freedom, lawsuits and subpoenas seeking their names are becoming much more common.

Earlier this month, the U.S. attorney's office in Las Vegas demanded the identities of everyone who wrote on The Review-Journal's site about a criminal tax trial in progress.

The newspaper had planned to try to quash the subpoena on First Amendment grounds, but the U.S. attorney's office narrowed its request to two comments that it said could be construed as threatening jurors or prosecutors. The newspaper agreed to give up the names, but the American Civil Liberties Union of Nevada is fighting to stop them, according to a Review-Journal article.

In Kentucky, the subpoena against The Richmond Register remains a rarity — one that is breaking new legal ground.

“This is the first of probably many times in the future when the laws that were created during an age when the Internet didn't exist are being applied to a new medium of information,” said Kenyon Meyer, an attorney for The Richmond Register.

While the Register took down the comment and banned l2bme from further posts, the paper is fighting the subpoena. As part of its defense, it cites the First Amendment rights of the paper and the poster to speak freely in a public forum — the same defense used by other papers with online sites and bloggers.

"Anonymous posters" has been a subject for several earlier ILB entries -- see this Dec. 29, 2008 ILB entry. One involved Indiana newspapers -- can anyone provide updated information?

Courts - "Tweeting, Texting, Googling Banned for Mich. Jurors"

Tresa Baldas of The National Law Journal has this long story today. A quote:

The Michigan Supreme Court has laid the hammer down on gadget-happy jurors in banning all electronic communications by jurors during trial, including tweets on Twitter, text messages and Google searches.

The ruling, which takes effect Sept. 1, will require Michigan judges for the first time to instruct jurors not to use any hand-held device, such as iPhones or BlackBerrys, while in the jury box or during deliberations.

The state's high court issued the new rule on Tuesday in response to prosecutors' complaints that jurors were getting distracted by their cell phones, smartphones and PDAs, in some cases texting during trial or digging up their own information about a case and potentially tainting the judicial process. * * *

According to the National Center for State Courts, a number of states have grappled with the problem of allowing jurors to bring cell phones to the courtroom. A recent questionnaire sent to court administrators across the country showed that many courts are addressing the problem of potential juror misconduct through hand-held devices.

For example, courts in Ramsey County, Minn., recently issued a new cell phone policy that prohibits jurors from brining any wireless communication device to court after two mistrials were declared when jurors used cell phones during deliberation against the court's order.

New Jersey, however, allows jurors to bring cell phones to court, but they must be turned off during trial. Cumberland County, Penn., has a similar phone policy. In Malheur County, Ore., jurors are not allowed to bring cell phones to court at all.

The ILB has had many earlier entries on jorors' tweeting, courts banning cellphones in the courthouse or courtroom, etc. See a list here.

U.S. District Court Judge Philip Simon, sitting in Hammond, dismissed the case Friday, stating the NRDC's federal case is "nearly identical" to three appeals filed in state court by other environmental groups, some of whom are represented by NRDC attorneys. He said the approach "smells fishy" and called it a "divide and conquer

"A cynic might conclude that the NRDC and its colleagues at the Sierra Club were trying to fight the war on two fronts," Simon stated in his ruling.

He added the state cases are further along and judges at the state Office of Environmental Adjudication have more expertise in reviewing IDEM permit decisions.

The NRDC had argued that BP violated the Clean Air Act by not obtaining the right type of permit. The group said BP's modifications would result in increased emissions of various hazardous pollutants and that IDEM was duped into giving BP the wrong permit because BP underestimated emissions from the expanded refinery.

"The NRDC thinks the IDEM got the call wrong. It may have. But the proper remedy is through the Indiana regulatory and state court process," Simon wrote. "What is the point of having an expert agency appeals process -- or a state court appeals process -- if litigants can simply side-step it by turning to federal courts?"

Wednesday, July 01, 2009

Courts - "Ohio Plaintiff in Private Lawsuit Has No Right to Discover Confidential Medical Records of Non-Parties"

Recalling these ILB entries from late 2006, under the heading "The Planned Parenthood Records Decision" (wherein the Indy Star wrote: "Attorney General Steve Carter is demanding the medical records of 73 low-income patients from Planned Parenthood of Indiana as part of an investigation that critics say tramples on Hoosiers' privacy rights"), the Supreme Court of Ohio today ruled that Planned Parenthood does not have to turn over abortion records to parents. The summary posted by the Ohio Court begins:

The Supreme Court of Ohio ruled today that, under the state laws in force at the time their claim arose in a private civil lawsuit against Planned Parenthood, the parents of a Cincinnati teenager who obtained an abortion at a Planned Parenthood clinic are not entitled to discover confidential child abuse reports or medical records of other minors who were treated at the same clinic.

Solomon Moore and Liz Robbins of the NY Times write today's lengthy report on the Michael Jackson will and related matters. The Times makes a copy of the document available here, noting:

The 2002 document leaves Michael Jackson's entire estate to a family trust. It names his mother, Katherine Jackson, as legal guardian of his three children and beneficiary of the trust. If she were incapacitated or died, the singer Diana Ross would get custody of his children.

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

In summary, Martin Oil and SSA presented evidence that Katzioris gave ESG permission in the fall of 1994 to enter his property to test for contamination and to conduct remediation efforts if necessary, evidence that Katzioris by his own admission is unable to contradict. Thus, as of that time, Katzioris possessed sufficient information to cause a reasonable person to inquire further in order to determine whether he had suffered a legal wrong. This occurred long before August 9, 2000, the date before which said information and knowledge defeats Katzioris‘s claim by application of the six-year statute of limitations. The trial court erred in denying the Appellants‘ motion for summary judgment on that basis. Judgment reversed.

VAIDIK, J., concurs.
NAJAM, J., dissents with opinion. [that begins, at p. 12] I respectfully dissent. The majority concludes that Katzioris‘ equivocal testimony amounts to a concession that he knew or should have known of the Appellants‘ conduct as early as 1994, thereby causing the statute of limitations to have run well before he filed this action in 2006. I would hold that the evidence favorable to Katzioris, the nonmoving party in this summary judgment appeal, is sufficient to create a genuine question of material fact regarding what he actually knew or should have known and when that knowledge should be attributed to him. As such, I would affirm the trial court‘s denial of the Appellants‘ summary judgment motion.

Following a guilty plea, Scott Spitler was convicted of aiding escape, a Class C felony, and sentenced to eight years, with seven years to be executed at the Department of Correction (“DOC”) and the remainder suspended to probation. Spitler appeals his sentence, contending that it is inappropriate in light of the nature of his offense and his character. Concluding that his sentence is not inappropriate, we affirm. * * *

In other circumstances, we might say that a maximum sentence is inappropriate for a defendant with character such as Spitler's – with minimal criminal history, many positive attributes, and strong support. * * * However, the nature of his offense is so unique and egregious as to substantially outweigh the positive aspects of his character. Spitler has failed to persuade us that his eight-year sentence is inappropriate.

The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the “residency restriction statute” constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes. * * *

Anthony Pollard was charged with, convicted of, and apparently served the sentence for a crime qualifying him as an offender against children before the residency restriction statute was enacted. We conclude that as applied to Pollard, the statute violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. The trial court thus properly dismissed the information charging Pollard with a violation of the statute. See State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008) (declaring “courts have the inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant‟s constitutional rights”). We affirm the trial court‟s judgment.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., concurs in result and concurs in the opinion except as to Part B3, believing the absence of a scienter element for certain forms of child molesting is not significant in evaluating the punitive character of this statute.

The defendant in this drunk driving prosecution persuaded the trial court to suppress the results of his blood alcohol breath test on grounds that the test machine had not yet been adjusted to reflect daylight saving time since it took effect a few days earlier and the police officer wrote the actual time of day by hand on the test results printed by the machine.

We hold the evidence should not have been suppressed. * * *

The State asserts the trial court erred in suppressing the breath test results merely because of an inaccurate timestamp on the breath test print out. We agree. * * *

The State argues that Officer Chin followed each of the required steps for administering the test and that the procedures require only that the operator to check the evidence ticket for the correct date and time and are silent as to what course of action the operator should take if an anomaly occur.

While Indiana courts have yet to discuss whether the accuracy of the time stamp has anything to do with the reliability of the test results, the Missouri Court of Appeals has discussed the issue. * * *

We find these decisions instructive. Here, Officer Chin followed each of the required steps of the procedure. The record does not indicate that he did anything that calls into question the reliability of the instrument or the evidence ticket when he noticed the erroneous timestamp and wrote the actual time of day on it.

The best authority Cioch offers in support of his position is State v. Johanson, 695 N.E.2d 965 (Ind. Ct. App. 1998). In Johanson, the Court of Appeals affirmed a trial court’s suppression of test results where the machine printed a blank ticket and the operator wrote in all the test information by hand from what he saw on the screen. Without reflecting on whether that was adequate ground for suppression, we think the officer’s action in this instance, noting a Daylight Savings difference, raises only a de minimus concern about the accuracy of the test results. We hold that this evidence is admissible.

Ind. Decisions - "What's next for David Camm? Case may not be remanded to trial court until fall"

Matt Thacker of the New Albany N & T has this story today. Some quotes:

After two trials and two convictions overturned on appeals, David Camm’s attorneys say they expect his case will go before a jury for a third time.

Floyd County Prosecutor Keith Henderson said at a press conference Friday that he has not decided whether he will try the case again. * * *

Henderson and the office of the attorney general, which handled the appeals process, will ask for a rehearing from the Supreme Court. They have 30 days to file a request, and the defense has 20 days to respond.

It could take another month or two before the Supreme Court decides whether to hear the case again, said Stacy Uliana, an attorney for Camm.

The case will then be remanded to Warrick County, and Henderson will decide whether to file new charges. If and when a decision is made, the defense will file motions to change venue and reduce bond.

“Nothing is going to happen probably until the fall,” Uliana said.

Location for a third trial

Camm’s attorneys are concerned about all the media publicity the case has received. That means a third trial could take place in Northern Indiana.

“I believe we have to get as far away from the media attention as possible. Alaska would be nice,” Uliana said jokingly.

Katharine Liell, another attorney for Camm, said another option is to bring jurors from another part of the state to Warrick County and hold the trial there again.

She said they will look into how much media coverage the case received in places such as Indianapolis and Northern Indiana cities.

“I think there needs to be a little bit more investigation as to how much [the case] has permeated throughout the state,” Liell said.

The murders have been the subject of national coverage — both filmed and written — and attracted the attention of CBS’ “48 Hours” program.

A defense motion to change venue was rejected before Camm’s first trial. Prior to the second trial, the defense filed a motion to change venue and the prosecution did not oppose. The two sides agreed upon Warrick County.

If they cannot agree on a location this time, Uliana said a judge will likely choose three counties and the prosecution and defense will each get to strike one county, leaving one remaining. * * *

Possible changes with third trial

New scientific discoveries in the past three years could uncover new evidence. Liell referenced “touch DNA” — a relatively new method of analyzing skin cells left behind when a suspect touches a victim or other crime scene evidence.

Liell said that all of Camm’s defense costs for the past two trials and the appeals procedures have been paid for privately. Now, Camm is indigent, and the state will have to pay for Camm’s defense in the third trial.

Liell and Uliana continue to represent Camm in the immediate future, but have not decided whether to go through another trial.

Ind. Law - "Ex-state rep. Oxley charged over claim"

The Marion County prosecutor filed charges today against a former state lawmaker and recent candidate for lieutenant governor who avoided a public intoxication arrest by misrepresenting himself as a legislator.

Former Rep. Dennie Oxley II, 38, faces charges of impersonation of a public servant, a Class A misdemeanor, and public intoxication, a Class B misdemeanor. A warrant was issued after charges were filed this morning in Marion Superior Court.

Ind. Courts - Still more on: A bizarre story this afternoon involving the wife of a Marion Superior Court judge

Kristina H. Nelson, 43, who is the wife of Judge William Nelson, is accused of forging the signature of another judge -- her sister-in-law, Judge Sheila A. Carlisle -- in a bid to stop the foreclosure of the Nelsons' home.
Advertisement

But which Nelson home became a matter of dispute Tuesday.

James Voyles, the attorney for Kristina Nelson, said that court documents identified the wrong home owned by the couple.

The affidavit filed in court Monday and a police report both listed an address for the couple's home in Marion County's Geist area. The Indianapolis Star published a photo of that house on the front page Tuesday.

But Voyles said the matter actually concerns the couple's vacation cabin near Rockville, Ind.

The cabin wasn't mentioned in the police documents, but Voyles said it is the only house owned by the Nelsons with a mortgage from EverHome Mortgage Co., the lender identified by police.

A foreclosure was initiated on the Geist home last year by Charter One Mortgage, according to Marion Circuit Court records. But Voyles said the couple no longer is in danger of losing that house.

"The notice that EverHome sent to her was for the other house," Voyles said, referring to the cabin.

Environment - More on "A Rough Term in Supreme Court for Environmentalists Draws to a Close"

Updating this ILB entry from June 26th, Marcia Coyle of the National Law Journal has a story today headed "High Court Losses Stun Environmentalists: Environmentalists are 0-for-5 at the Supreme Court this term." Some quotes:

Environmentalists suffered a stunning 0-for-5 outcome in the U.S. Supreme Court this term, their "worst term ever," according to advocates and scholars.

The defeats left the environmental community -- and even its traditional antagonist in these cases, the business community -- wondering where the Court is heading in this increasingly important area of the law.

Is the Roberts Court pro-business, anti-environment, pro-government -- or something else? Their answers are as varied as the issues raised in the five cases that the justices decided.

What is clear is the Court's heightened interest in environmental law. The justices have decided 15 cases in just the past five terms, but in none of those terms, in fact in none of the past nine terms, have environmentalists experienced a complete shutout. * * *

For environmentalists, the defeats were particularly painful because their interests had prevailed in the courts below in all five cases. The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review. "They were all victories below for environmentalists, so you wonder if the Court is making some strategic choices in the cases it picks," said Jonathan Cannon, director of the environmental and land use program at the University of Virginia School of Law.

Based on the five decisions, the trend this term is "business always wins, even when the government's interest is to the contrary," said John Hanson, a partner at Washington's Beveridge & Diamond who represents businesses in environmental litigation.

The Indiana Supreme Court has denied the city of East Chicago's bid for a court order to route millions of casino dollars back to the city. The justices also ruled the Indiana Gaming Commission can alter the agreement that funnels riverboat gambling money to two private groups.

Lawyers for Second Century and the Foundations of East Chicago declared the court's 21-page mixed decision Tuesday a victory in the long-running war over casino funds.

The fight centers on a deal sealed by former East Chicago Mayor Robert Pastrick to route casino money to the nonprofit Foundations and Second Century, a for-profit company run by Pastrick allies. Current Mayor George Pabey wants those economic-development funds back under city control.

The court's decision not to order the funds shifted to the city means the Pabey administration was "the big loser" in Tuesday's decision, said J. Lee McNeely, a lawyer for Second Century.

"The court agreed with us," McNeely said. "In fact, the supervisory authority over this agreement is the Gaming Commission, and we're comfortable with that." * * *

The decision's centerpiece is the ruling that the Gaming Commission can alter the agreement that sends cash to the controversial groups. Under the deal signed in 1994, 3.75 percent of the casino's annual revenue goes to economic development. The city gets 1 percent. The two nonprofit Foundations of East Chicago each take a 1 percent cut, and a 0.75 percent subsidy goes to Second Century, a firm created to build affordable housing.

Peter Rusthoven, a lawyer for the Foundations, said Tuesday his clients are "fine" with the Gaming Commission's overseeing the agreements. Second Century's lawyer, McNeely, said the for-profit -- run by Pastrick allies Thomas Cappas and Michael Pannos -- is "perfectly prepared" to address the agreements with the Gaming Commission.

Gaming officials could not be reached Tuesday to explain what the ruling might mean for the commission.

The justices also ruled on a series of lower-court decisions from the case's Byzantine legal history. In its decision Tuesday, the Supreme Court remanded several counts to be heard in the Marion County trial court. The justices ruled that lower courts erred in using statutes of limitations to dismiss several of the city's claims against Second Century and the Foundations.

The legal arrangement that pays the for-profit East Chicago Second Century Inc., and two other not-for-profit entities a portion of East Chicago casino gambling revenue can be modified under Indiana Gaming Commission rules, the Indiana Supreme Court ruled.

In a 21-page opinion, the court found that the letter agreement that provides for 0.75 percent of the gross receipts paid by the East Chicago casino to East Chicago Second Century Inc., could be subject to modification through the gaming commission administrative process with input from city officials.

The city receives 1 percent, as do two not-for-profit organizations, Twin City Education Foundation, and the East Chicago Community Foundation.

East Chicago's casino license has changed ownership several times from 1996 when Showboat first began operations. Harrah's Entertainment Inc., took over the license in 1999, and in 2005, after the commission approved transfer of the license to Resorts East Chicago, it asked the attorney general's office to investigate the financial operations of Second Century.

Ind. Courts - "State targets prosecutor's lapsed license"

Newton County Prosecutor J. Edward Barce, who is serving as special prosecutor in a case involving a Gary lawyer charged with trafficking with an inmate, let his law license go into inactive status for more than three years.

Until four months ago, Barce's license had been on inactive status since Aug. 5, 2005, according to Donald Lundberg, executive secretary of the Indiana Supreme Court Disciplinary Commission. Barce reactivated his license on Feb. 23, Lundberg said.

Barce's license status was one of the reasons cited by Jerome Taylor in seeking the dismissal of the trafficking with an inmate case Barce filed in June 2007 against Taylor's client, Gary attorney Carl Jones.

Taylor asked Lake Superior Court Judge Sheila Moss to dismiss the case in a March 19 filing and argued that Barce's inability to practice law in Indiana amounted to prosecutorial misconduct.

In a June 11 ruling, Moss found that Jones hadn't been harmed or prejudiced by the fact that Barce's law license was on inactive status. * * *

As attorney for the commission, Lundberg said he filed a complaint April 8 charging Barce with misconduct for functioning as Newton County prosecutor and as a special prosecutor in other cases with an inactive law license. A hearing is scheduled for Oct. 16 in Lafayette. If the court finds misconduct has occurred, it could take action ranging from a private reprimand to a permanent disbarment.

As for what happens to cases Barce was involved in as the elected prosecutor in Newton County, Lundberg said Barce's license status "raises a cloud over those cases. I suppose anyone who was convicted could test the validity of that conviction."

Two other Lake County cases had been referred to Barce for review because of potential conflicts in the Lake County prosecutor's office. They include a May 28 shooting outside Bennigan's in Gary in which one man was wounded. Gary lawyer Jerry Peteet, who was identified as a suspect, has denied involvement.

The second case stems from an October 2007 crash in Gary in which Gary lawyer Cornell Collins was arrested after allegedly driving drunk and leaving the scene. Collins' wife, Rochelle Moody, works in the prosecutor's office.

Environment - Still more on: "EPA secrecy on coal-ash list worries lawmakers: Some of 44 'high hazard' sites might be in Kentucky, Indiana"

Updating this ILB entry from Monday, Shaila Dewan of the NY Times has a story today on the EPA list. Some interesting points from the story:

The “high hazard” rating applied to sites where a dam failure would most likely result in a loss of human life, the environmental agency advisory said, but did not assess the structural integrity of the dam or its likelihood of failure. * * *

The E.P.A. list was based on responses to a questionnaire that the agency sent to utilities and power plants. Environmentalists said they did not believe the list was complete because it was based on self-assessment.

“T.V.A. ranked its own dams, and it didn’t rank any of its dams ‘high hazard,’ ” said Lisa Evans, a lawyer for Earthjustice. * * *

Ms. Evans said dam integrity was not the only or even the central problem with coal ash dump sites. In 2007, an E.P.A. report identified 63 sites in 26 states where the water was contaminated by heavy metals from such dumps, including three other Tennessee Valley Authority dumps. Experts say coal ash should be stored in lined landfills to prevent contamination, but the agency questionnaire did not ask whether the sites were lined.

David Merryman of the Catawba Riverkeeper Foundation in Charlotte, N.C., said two of the sites on the “high hazard potential” list discharge into Mountain Island Lake, the primary source of drinking water for 750,000 people in the Charlotte area. Those sites, which belong to Duke Energy, are unlined ponds.

Jason Walls, a Duke Energy spokesman, said the company’s two newest coal ash ponds were lined.

Ten of the sites on the high hazard list belong to Duke Energy. But Mr. Walls said those sites were sound.

For years, the E.P.A. has failed to regulate the disposal of coal ash despite promises to do so. Under the Obama administration, agency officials have pledged to issue regulations by the end of 2009.

But Stephen Smith, the director of the Southern Alliance for Clean Energy, said withholding the list, even temporarily, raised questions about the agency’s intentions. “It’s still unclear to me what the E.P.A.’s ultimate goal here is to do,” Mr. Smith said. “Are they really going to aggressively regulate this material like they need to, or are they taking more of a hands-off approach?”

Environment - "Federal judge won't block BP refinery expansion"

Judge Philip Simon in Hammond dismissed the Natural Resources Defense Council's request for an injunction, ruling a appeal pending before Indiana environmental regulators should be decided before the matter goes to federal court.

Courts - "Is Melendez-Diaz already endangered?"

Monday the SCOTUS has decided the case of Melendez-Diaz v. Massachusetts (07-591), on whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence. As noted in this June 24th ILB entry, at least two Indiana cases argued before our Supreme Court in 2008 have probably been awaiting this ruling.

Also on Monday, Lyle Denniston of the SCOTUSLaw Blog had an interesting analysis piece headed "Is Melendez-Diaz already endangered?" Just a few quotes:

The ruling, made under the Constitution’s Confrontation Clause, requires the prosecution, if it plans to present a lab report as evidence in a criminal trial, to make the analyst who prepared it available for on-demand cross-examination by defense counsel. The decision came on a 5-4 vote.

If it were possible to pick up a fifth vote, could the dissenters from that case then lead the Court to reconsider — or least narrow considerably – the decision in Melendez-Diaz? * * *

This is speculation, of course, but there is little else to suggest why the Court announced Monday that, next Term, it will review the case of Briscoe, et al., v. Virginia (07-11191). Here is the question raised in the Briscoe petition, filed in May of last year by University of Michigan law professor Richard D. Friedman:

“If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”

Ind. Courts - Injunction against Governor not needed after all, but interesting

Fearing lawmakers might fail to produce a budget, Hoosier Park and other state gambling sites went to court Tuesday and got an order to prevent a state shutdown in such an event.

Marion County Superior Court Judge John F. Hanley issued an injunction that barred Gov. Mitch Daniels and state agencies from closing casinos and race tracks if a budget had not been approved. Hanley sided with casino operators who said the state had no grounds to close the sites amid the budget crisis.

Daniels had threatened Tuesday to close the gaming sites if a budget had not been approved by midnight. He had claimed that state gaming regulators were nonessential state employees who would be furloughed without a budget.

Hanley disagreed and ruled that closing casinos and race tracks would provide no benefit to the state and would irreparably harm the gaming sites.

“All costs associated with the enforcement of the Indiana Gaming Commission’s powers and duties are paid for directly by the casinos, including all the costs associated with gaming agents who are on site in every casino,” Hanley ruled. “No monies are expended by the state of Indiana to pay for gaming agents or the cost of enforcing regulations.”

The Casino Association of Indiana filed its request for an injunction against Daniels, the Gaming Commission and the Indiana Attorney General’s office. It sued on behalf of the state’s gaming sites, including Hoosier Park.

“I think we presented a very good case,” said Jim Brown, Hoosier Park director of gaming.

While approval of a state budget averted a possible shutdown, Tuesday’s ruling could set a precedent if the state finds itself in a similar future financial crisis.

Hanley’s order set a hearing of giving the state until July 8 to show why his injunction should not be made permanent.

For Brown, the ruling ended days of planning for the possibility of a state-imposed shutdown ahead of one of Hoosier Park’s biggest weekends.

“It was interesting,” Brown said. “I’m just extremely happy that we’re going to be open and celebrating an exciting Fourth of July weekend.”